Case-Law Summary
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Abdullah Yaşa 2015/12486 5 November 2020 (Plenary) |
Violation of the right to an effective remedy safeguarded by Article 40 of the Constitution |
- Alleged violation of the applicant’s right for the administration’s failure to redress the non-pecuniary damage he had sustained due to his injury as a result of disproportionate use of force by the security forces. - It was already found established by the ECHR that the prohibition of ill-treatment had been violated, and thus the applicant was awarded compensation. - Existence of an explicit inconsistency between the ECHR’s judgment and the administrative court’s decision dismissing the applicant’s action for compensation, given their respective reasoning and conclusions. - Article 46 § 1 of the Convention, which provides that the final judgments of the ECHR are binding for the Contracting Parties, comes into play. - In cases where the ECHR has found a violation of any constitutional right, the individual concerned shall have a right to an effective remedy. - In addition, there is a contradiction between the findings of the administrative court and those of the assize court. |
|
|
Candar Şafak Dönmez 2015/15672 5 November 2020 (Plenary) |
No violation of the freedom of expression safeguarded by Article 26 of the Constitution |
- Alleged violation of the said freedom due to the lack of relevant and sufficient reasons to justify the applicant’s conviction. - The applicant was sentenced to imprisonment severally for his membership of the TKP/ML–TIKKO (the Turkish Communist Party-Marxist Leninist - Turkish Workers and Peasants’ Liberation Army) and for having disseminated terrorist propaganda. - Given the slogans chanted and the activities performed by him, he was proven to praise the members of the terrorist organisation, to support their violent activities and to glorify the deceased members of the organisation in the context of their organisational role. - His impugned acts cannot be considered merely as an abstract danger. - The impugned interference was found to meet a pressing social need, be proportionate and compatible with the requirements of a democratic society. |
|
| II. Constitutionality Review | |||
|
E.2019/21 24 September 2020 (Plenary) |
Annulment of the provisions on the revocation of demolition orders and administrative fines with respect to the unlicensed buildings situated in the Bosphorus Frontal View Area |
- Contested provisions allow for the revocation of the demolition orders issued and administrative fines imposed with respect to the unlicensed buildings situated in the Bosphorus Frontal View Area, as well as for the official registration of the buildings constructed in contravention of Zoning Law. - Alleged to be unconstitutional as they contradict the State’s duty to preserve the historical, cultural and natural assets and hinder the execution of the demolition orders issued with respect to the several unlicensed constructions situated in the Bosphorus Area, as well as the collection of the administrative fines imposed on account thereof. - As clearly indicated in the Constitution, the State is under the obligation, inter alia, to take measures so as to improve the natural environment, to protect the environmental health as well as to secure the protection of historical, cultural and natural assets and wealth. - The preservation of the Bosphorus coastline and the frontal view area, having several outstanding cultural and natural assets, is a concern not only to those living today but also to the next generations: involving a significant public interest. - No reasonable balance between the competing interests. |
|
|
E.2019/7 15 October 2020 (Plenary) |
Dismissal of the request for annulment of the provision stipulating that the uncollected administrative fines regarding the buildings with a building registration certificate shall be revoked. |
- Contested provision sets forth that the uncollected administrative fines regarding the buildings with a building registration certificate shall be revoked. - The provision is claimed to be unconstitutional since it puts those who have already paid the fines at a disadvantage when compared to those who have not made a payment yet, despite being in the same legal position and situation, which is allegedly in contradiction with the principle of equality. - It is clear that the first group is at a disadvantage. - However, the aim pursued by such a regulation is to reduce the workload of the judiciary and municipalities. Hence, it pursues a legitimate aim. - Within the scope of the reconstruction peace, it is at the discretion of the legislator to revoke the already collected administrative fines, provided that it is not contrary to the constitutional rules and principles. - Besides, the impugned rule is provisional. - The contested provision is based on a reasonable and objective ground and is proportionate; therefore, it has been found constitutional, and the request for its annulment has been dismissed. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Mehmet Aypan 2016/4868 30 September 2020 (Second Section) |
Violation of the right to protect the corporeal and spiritual existence safeguarded by Article 17 of the Constitution |
- Alleged violation of the impugned right due to insufficient compensation awarded for visual loss caused during military service. - The applicant, found medically fit for military service, was recruited in the Gendarmerie Training Command. Having complained of pain and visual loss in his one eye, the applicant was then referred to a hospital where he underwent a surgery for having eye infection. - He was subsequently discharged from the army for being no longer fit for military service. - He suffered a total loss of vision in his eye. - In the action brought by him for compensation, the Supreme Military Administrative Court found neglect of duty on the part of the relevant administration for having recruited the applicant who had been indeed medically unfit for military service and accordingly awarded pecuniary and non-pecuniary compensation. - The Court however observed a manifest disproportionality between the amount of non-pecuniary compensation awarded to, and the damage sustained by, the applicant and found the awarded amount so low that would impair the very essence of the right to compensation. - Positive obligations incumbent on the State within the meaning of the right in question were not fulfilled in the present case. |
|
|
Public Services Employees Union of Turkey 2016/14475 30 September 2020 (Second Section) |
Violation of the right to union safeguarded by Article 51 of the Constitution |
- Alleged violation of the said right due to the refusal to grant leave for an investigation against an administrator allegedly exerting pressure on the unionised employees. - As maintained by the applicant union, the Deputy Mayor ordered the unionised employees working in a municipality to immediately resign from the union and otherwise, their employment contracts would be terminated. - In this sense, the employment contract of the union’s representative at that workplace was terminated. However, the incumbent civil court ordered the reinstatement of the union’s representative to his post, stating that his employment contract had been terminated for union-related reasons, as in the cases of two other employees who had been also dismissed. - The applicant union filed a criminal complaint before the incumbent prosecutor’s office against the Deputy Mayor for his having precluded the exercise of union-related rights. However, no leave was granted for an investigation. - The way in which the public authorities conducted the investigation was not capable of having a deterrent effect to prevent unjustified interferences with the right to union. |
|
|
Majid Momtaz 2017/24261 30 September 2020 (Second Section) |
No violation of the right to respect for family life safeguarded by Article 20 of the Constitution |
- Alleged violation of the said right due to the deportation order issued against the applicant. - The applicant, a foreign national married to a Turkish citizen with two children, was sentenced to imprisonment for forgery of official documents. He was then released on conditional bail. A decision ordering his deportation and administrative detention was issued due to his posing a threat to the public order. - His action for annulment of the decision was dismissed by the administrative court. His request for an interim measure to stay the execution of the deportation order was also dismissed by the Court. - The applicant’s failure to take the necessary steps to lawfully reside in Turkey despite living in the country for about 30 years and married to a Turkish citizen. - His deportation order was overridden by the legitimate aim of maintaining public order and security. - Nor did he submit any concrete information or document to show the serious obstacles to his living with his family outside Turkey. |
|
| II. Constitutionality Review | |||
|
E.2020/60 1 October 2020 (Plenary) |
Dismissal of the request for annulment of the provisions allowing for the establishment of several bar associations in the same province |
- Contested provisions allow for the establishment of a bar association, with the presence of a minimum of two thousand lawyers, in the provinces with more than five thousand lawyers exercising the legal profession and accordingly set forth the relevant principles and procedures. - It is argued inter alia that Article 135 of the Constitution cannot be interpreted in a way that would allow for the establishment of several public legal entities in a region so as to exercise the same profession; and that the establishment of more than one bar association in the same province would lead to an impression that the lawyers from the bar associations having a close relationship with the ruling party would be in a more advantageous position vis-à-vis the others before the judiciary. - The Court notes that there is no constitutional restriction to the effect that there cannot be several professional organisations in the form of a public institution in the same region. - Whether the enacted law is in pursuance of public interest: The Court found that the contested provisions do not pursue any aim other than that of the public interest. - Besides, legal measures have been taken so as to prevent the bar associations from engaging in any activity that serve any aim other than those specified in the Constitution and Law. |
|
|
E.2018/124 15 October 2020 (Plenary) |
Dismissal of the request for annulment of the contested provisions laid down in the Presidential Decree on the Presidency of Defence Industry |
A. Contested provision empowering the Presidency of Defence Industry (“PDI”) to found its organisation abroad. - It is argued that the PDI’s organisation abroad cannot be founded through a Presidential Decree. - The contested provision is concerning a matter regarding executive power and does not embody any regulation on the fundamental rights, individual rights and duties, as well as on the political rights and duties which cannot be regulated through a presidential decree. - Nor is the provision concerning a matter needed to be regulated exclusively by law. Accordingly, it has been found constitutional insofar as it relates to the competence ratione materiae. - Nor has it been found unconstitutional by its content. B. Contested Provision on the appointment procedure of the PDI’s personnel - It is set forth therein that the personnel of the PDI shall be appointed upon the approval of the President; and that the President may delegate this authority to the Head of the PDI. - It is argued that the principles and rules on the employment of the PDI’s personnel should have been regulated by law; and that as the employment by public institutions falls within the scope of the right to hold a public office, this issue cannot be regulated through a presidential decree. - The contested provision merely designates the competent authority to appoint the PDI’s personnel and does not contain any arrangement as to the employment requirements. It is therefore not a matter falling under the scope of the right to hold a public office. - Nor is there any provision of law explicitly regulating this matter. - Accordingly, the contested provision has been found constitutional insofar as it relates to the competence ratione materiae. - As the contested provision, which is to be clear, precise, comprehensible, enforceable and objective to the extent that would cause no hesitation and doubt for both individuals and the administration, involves no unclarity, it has been found constitutional by its content. |
|
|
E.2020/14 15 October 2020 (Plenary) |
Annulment of the contested phrase “… imprisonment for longer than 6 months” in Article 6 (E) of the Law no. 772 on the District Guards, the assistant law-enforcement officers (“Bekçi”) |
-Contested provision stipulates that those who have been sentenced to imprisonment for longer 6 months are not eligible to serve as a district guard. - It is argued that the contested provision does not contain any distinction as to the nature and classification of the criminal act due to which imprisonment sentence is imposed, despite the general conditions sought for becoming a public officer, which only prohibits holding a public office in case of imprisonment due to a deliberate offence. - It has been found unconstitutional and therefore annulled for serving no legitimate aim within the constitutional context. |
|
|
E.2019/59 22 October 2020 (Plenary) |
Annulment of the contested provision prohibiting the attachment of the movable and immovable properties of private schools until the end of the relevant school year |
- Contested provision stipulates that the movable and immovable properties of the private schools operating under Law no. 5580 cannot be subject to attachment until the end of the relevant school year. - It is argued that the failure to delimit the attachment prohibition with the movable and immovable properties used exclusively for educational activities imposes an excessive burden on the creditor; and that despite the opportunity to impose a temporary ban on sale and disposal of such properties, to prescribe an attachment prohibition falls foul of the principle of equality. - Contested provision is indeed intended for ensuring the continued educational activities without any delay at schools within the scope of the constitutional right to education. - However, no distinction is set as to the nature of the properties which cannot be se subject to attachment during the relevant school year and thereby the scope of such prohibition is extended to the properties of such individuals which are indeed related to any other field of business activity. - It has been found unconstitutional and therefore annulled for upsetting the balance to be strike between a creditor and a debtor to the detriment of the former.
|
|
|
E.2020/1 22 October 2020 (Plenary) |
Dismissal of the request for annulment of the contested provision setting an upper limit for the counsel fees to be distributed among the counsels |
- Contested provision sets an upper limit for the counsel fees awarded in favour of the relevant administration and to be subsequently distributed among the counsels of the administration. - It is argued that as the contested provision, containing an arrangement as to financial rights, cannot be regulated through a decree law; and that it is therefore unconstitutional. - The upper limit prescribed therein is formulated in a clear, precise and computable way. Therefore, the contested provision is not found indefinite and unforeseeable. - Besides, it is intended for ensuring fairness, as well as equity of income distribution, among the counsels holding office in the same department, thereby being in pursuance of the public interest. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Özkan Karataş and Others 2017/31774 14 October 2020 (First Section) |
Violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution |
- Alleged violation of the applicants’ right due to imposition of administration fines for their sit-in protest without permission during the state of emergency period. - The aim sought to be achieved through the permission requirement put into effect during the state of emergency was to enable the authorities to prevent the incidents that might disturb public order and to take necessary measures in advance. - In the circumstances of the case, the applicants’ failure to seek permission was not necessarily a required element for the administration to take measures. - There was no evidence that the applicants had disturbed the public order due to their acts in the public area closed to traffic. - The applicants' peaceful demonstration, in other words their just sitting on a bench for about seventy days, should have been tolerated in a democratic society. - Punishment of the applicants, who had participated in a peaceful demonstration not interfering with daily life, traffic or the public services, through the imposition of administrative fines on account of their failure to seek permission cannot be regarded as a restriction proportionate to the aim pursued during the state of emergency. |
|
| II. Constitutionality Review | |||
|
E.2020/12 10 September 2020 (Plenary) |
Annulment of the provision banning demonstration marches on intercity highways |
- Contested provision stipulates that demonstration marches shall not be held on intercity highways. - It was argued that in determining the place where a demonstration march would be held, the rights and freedoms of other individuals who would use that place should also be taken into consideration; however, the impugned provision imposed a categorical ban without such consideration. - The right to hold meetings and demonstration marches, taken together with the freedom of expression, forms the basis of a democratic society. - As pointed out in the previous judgments of the Court, meetings and demonstration marches inevitably have an adverse effect on the daily lives of others, which should be tolerated in a democratic society. - However, unless there is a pressing need in a democratic society, individuals should be able to choose the place where they will hold a demonstration march. -The contested provision categorically bans the organisation of demonstration marches on intercity highways, without referring to the extent of the potential disruption or hardship. - The impugned restriction on the right to hold meetings and demonstration marches does not meet a pressing social need, nor does it comply with the requirements of the order of a democratic society. - Consequently, the contested provision has been found unconstitutional and therefore annulled. |
|
|
E.2019/69 10 September 2020 (Plenary) |
Dismissal of the request for annulment of the provision prescribing criminal sanction for disclosing the identities of child victims of crime in periodicals |
- Contested provision prescribes criminal sanction for disclosing the identities or causing the recognition of minor victims of crime in periodicals. - It was argued that the acts to be subject to criminal sanction pursuant to the contested provision was limited to the periodicals and would not constitute crime if committed through the mass media, and that the rights of those to be mentioned in the news would override the freedom of the press. - Constitutional provisions allows for the restriction of the freedom of expression for the purpose of protecting the reputation or rights of others. - The contested provision aims to protect the reputation and rights of child victims, thereby pursuing a legitimate aim. The said restriction also complies with the constitutional provision that requires the State to take measures to protect children against all kinds of abuse. - Equality before the law does not necessarily mean that everyone shall be bound by the same rules. The particular circumstances may require different rules and practices for some individuals or communities. - It is at the discretion of the legislator, within constitutional limits, to prescribe different types of sanctions for the same act committed through different means, which does not contravene the principle of equality. - Consequently, the contested provision has been found constitutional and the request for its annulment has been dismissed. |
|
|
E.2020/27 24 September 2020 (Plenary) |
Dismissal of the request for annulment of the provision stipulating that the mayor may appeal the final decisions of municipal before the administrative courts |
- Contested provision sets forth that the mayor may appeal the final decisions issued by the municipal council before the administrative courts. - It was argued that in the cases to be filed by the mayor against the decisions of the municipal council, there is uncertainty about the person who will represent the municipality. - One of the basic principles of the rule of law is certainty, which can also be achieved through the courts’ case-law, provided that it meets the requirements such as being accessible and foreseeable. - It is foreseeable that the technical aspects of the said remedy, the general framework of which is set by the impugned provision, shall be determined by the administrative courts through the case-law. - Thus, the contested provision is not uncertain. - Consequently, the contested provision has been found constitutional and the request for its annulment has been dismissed. |
|
|
E.2020/21 1 October 2020 (Plenary) |
Annulment of the provision whereby the court decisions issued upon objection to an administrative fine are considered final |
- Contested provision sets forth that the decisions issued by courts upon objection to administrative fines that have been imposed on construction inspection authorities shall be final. - It was argued that the contested provision was unconstitutional as the administrative fines, subject-matter of the court decisions envisaged to be final in the contested provision, might be in excessive amounts and that these decisions therefore must be subject to appellate review. - The right to appellate review of a decision is applicable to all proceedings either based on a criminal charge or concerning civil rights and obligations. - The contested provision, which envisages that the court decisions issued upon objection to an administrative fine shall be final, constitutes a restriction on the right to appellate review of a decision by another court. - The administrative fines in excessive amounts are in the form of severe sanctions, given their effect on the financial situation of the concerned individual; and that they therefore amount to a punishment. - In this sense, the importance attached to the appellate review of such decisions, which may cause the relevant individual to face a severe penalty in financial terms, cannot be denied. - The contested provision imposes a disproportionate restriction on the right to appellate review of a court decision. - Consequently, the contested provision has been found unconstitutional and therefore annulled.
|
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Ayla Demir İşat 2018/24245 8 October 2020 (Plenary) |
Violation of the right to respect for private life safeguarded by Article 20 of the Constitution |
- Alleged violation of the said right due to the termination of the applicant’s employment contract, based on breach of confidence. - The applicant, an employee serving at the Central Union of the Turkish Agricultural Credit Cooperatives, was dismissed from office -without notice and compensation- following the coup attempt, by virtue of the Decree-law no. 667. - Her action for reinstatement in the relevant post was dismissed by the relevant court. Her challenge and subsequent appeal request were also rejected. - The application was examined under the right to respect for private life as the impugned interference with the professional life had a severe effect on the applicant’s private life, which attained a certain level of gravity. - Reasons underlying the suspicion to the effect that she was in relation or connection with the FETÖ/PDY were not capable of proving the alleged breach of confidence. - No plausible, relevant and sufficient grounds to justify that the impugned interference met a pressing social need. |
|
| II. Constitutionality Review | |||
|
E.2018/31 16 July 2020 (Plenary) |
Dismissal of the request for annulment of the provision regarding the lack of responsibility of the civilians, who resisted the coup attempt of July 15, for their acts during such resistance |
- Contested provision stipulates that those who contributed to the suppression of the coup attempt of 15 July 2016 and related terrorist activities, regardless of whether they had an official title or fulfilled an official duty, shall not have legal, administrative, financial or criminal responsibilities due to their acts. - It is argued that the impugned provision has the characteristics of granting amnesty, therefore, a three-fifths majority is sought for its adoption by the Grand National Assembly of Turkey; and that it is unconstitutional as it limits many fundamental rights and freedoms disproportionately, notably the right to life and the prohibition of torture. - As regards the formal examination of the impugned provision, it is observed that the provision is not related to an offence. In order for the applicability of amnesty, there must be an offence. Thus, a qualified majority is not required for the adoption of such provision. - As regards the substantive examination of the impugned provision, it is observed that the provision does not impose an obstacle for trial. In the examination of the acts claimed to have been wrongful, it shall be considered whether the act in question was committed under the conditions stipulated by the provision, and if it is concluded otherwise, the criminal responsibility shall come to the fore. - Consequently, the contested provision has not been found unconstitutional and thus the request for its annulment has been dismissed. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Hüseyin Sezer 2016/13566 and Barış Baş 2016/14253 2 July 2020 (Plenary) |
Violation of the presumption of innocence safeguarded by Articles 36 and 38 of the Constitution |
- Alleged violation of the applicants’ presumption of innocence due to the administrative courts’ failure to consider the acquittal decisions issued in the criminal proceedings. - The applicants were tried before the incumbent criminal courts due the offences imputed to them, and at the end of the criminal proceedings, they were acquitted. - Due the same impugned acts, a disciplinary penalty was imposed on them. The actions brought by them for the revocation of their disciplinary penalties were dismissed as the incumbent administrative court found the penalties lawful. - In cases where the acts subject-matter of the disciplinary and criminal proceedings are the same, the administrative courts dealing with the disputes concerning disciplinary investigations are expected to respect the conclusion reached by the criminal court and not to use expressions that would question the criminal court’s conclusion. - In the present cases, the administrative court and the regional administrative court not only discussed the conclusion reached by the criminal court in its decision but also created the impression for those reading the decisions that the applicants had committed the imputed acts, which rendered the acquittal decisions dysfunctional and casted doubt on their innocence. |
|
|
S.A. 2017/40199 8 September 2020 (First Section)
|
Violation of the right to marry safeguarded by Articles 20 and 41 of the Constitution |
- Alleged violation of the said right due to the failure to notify the divorce decree to the spouse abroad. - The applicant was divorced from her Tanzanian husband on 21 February 2003. - The civil court issued a writ to the Ministry of Justice (“the Ministry”), seeking the notification of the divorce decree to the defendant (ex-husband) who was in his country of origin. - In 2016, the applicant was informed that although the request had been submitted several times to the relevant ministry of the respondent country, any reply had not been taken due to systemic problems in the country. - The outcome of divorce proceedings could not be notified to the defendant for his not being in Turkey. Therefore, the applicant’s marital status could not be changed, despite 17 years having elapsed since the date of divorce decree, due to the non-completion of the finalisation process. - Failure of the relevant authorities to apply the alternative legal means, namely notice by publication. - The due diligence obligation was disregarded to the extent that would impair the very essence of the right to marry. |
|
|
Tahir Baykuşak 2016/31718 9 July 2020 (Second Section) |
Violation of the prohibition of ill-treatment, safeguarded by Article 17 of the Constitution |
- Alleged violation of the prohibition of ill-treatment due to the failure to prosecute the police officers allegedly battered the applicant during an identity check. - The State’s obligation to protect the corporeal and spiritual existence of the individuals from any danger, threat and violence came into play. - The investigation authorities’ failure to take statements of the witnesses. - Given the consequences of the treatment of the law enforcement officers against the applicant, the minimum threshold of severity required by the Constitution had been exceeded. - In addition, although it was stated in the first medical report issued in respect of the applicant that there was no sign of assault on his body, the subsequent report that was issued on the same day upon the applicant’s request proved otherwise. - The investigation authorities failed to investigate the relevant doctor, either. - Hence, the investigation into the incident lacked both thoroughness and effectiveness. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Kadri Enis Berberoğlu 2018/30030 17 September 2020 (Plenary) |
Violations of the right to be elected and engage in political activities as well as the right to personal liberty and security, respectively safeguarded by Articles 67 and 19 of the Constitution |
- Alleged violations of the applicant’s rights for his having been held in detention on remand even after he was re-entitled to parliamentary immunity following his re-election as a Member of the Parliament. - Pursuant to Article 83 § 4 of the Constitution, which stipulates that parliamentary immunity shall be granted throughout a legislative session and lifted at the end of the session, a re-elected MP shall be, as a rule, re-entitled to parliamentary immunity. - Parliamentary immunity, as a constitutional institution, is a protection mechanism employed to ensure that MPs can freely participate in legislative activities without encountering any obstacle. - An exception to a general rule –in the present case, Provisional Article 20– cannot be interpreted broadly, and its scope cannot be extended as well. - The denial of the applicant’s re-entitlement to parliamentary immunity, despite his being re-elected as an MP, pursuant to the imperative provision of Article 83 § 4, which is a general rule, as considered to fall into the scope of Provisional Article 20 of the Constitution runs contrary to the wording of the relevant article as well as the will of the constitution-maker. - The applicant was re-entitled to parliamentary immunity as of the date of his re-election as an MP at the general elections and therefore; his continued detention after the relevant date was incompatible with Article 83 of the Constitution. - The applicant's request for release –relying on his parliamentary immunity– was not examined on the merits from 29 June 2018 until 20 September 2018, and his detention continued throughout this period. Thus, deprivation of the applicant's liberty between the aforementioned dates has been incompatible with Article 83 of the Constitution, where the guarantees related to parliamentary immunity are laid down. |
|
|
Arif Ali Cangı 2016/4060 17 September 2020 (Plenary)
|
Violation of the right to the protection of personal data under the right to respect for private life safeguarded by Article 20 of the Constitution |
- Alleged violation of the said right due to the disclosure of the applicant’s private information to a third party. - The applicant, a lawyer, was the plaintiff in an action brought for the annulment of the impugned zoning plan. The intervening party of the said annulment proceedings requested information from the relevant Ministry to use during the proceedings. - Information disclosed to the other party included the applicant’s personal data. - Upon the dismissal by the relevant administration of his claim for non-pecuniary compensation, the applicant brought an action for compensation due to the disclosure of his personal data; but it was dismissed by the administrative court. - Neither the administration nor the judicial authorities proved a public interest in the disclosure of the information about the applicant. - Interference with the applicant’s right to the protection of his personal data lacked any legal basis. - The collection and disclosure of such information in the absence of the applicant’s explicit consent did not meet a pressing social need and were incompatible with the requirements of a democratic society. |
|
|
Bestami Eroğlu 2018/23077 17 September 2020 (Plenary) |
No violation of the right to the protection of personal data and the freedom of communication safeguarded by Articles 20 and 22 of the Constitution respectively |
- Alleged violation of the said right and freedom due to the unlawful gathering of the applicant’s ByLock communication and personal data. - The applicant was sentenced to imprisonment for his membership of the FETÖ/PDY terrorist organisation. The decision was upheld by the Court of Cassation. - The impugned interference pursued the aims of revealing the activities of the said terrorist organisation and preventing the commission of offences. - The use of intelligence methods is inevitable for the identification of the members of this clandestine organisation and uncovering of its activities. -The applicant’s communications were intercepted and obtained pursuant to the relevant laws and by virtue of a court decision. - Besides, the impugned interference was necessary in a democratic society and proportionate to the aims pursued. |
|
|
E.Ü. 2016/13010 17 September 2020 (Plenary) |
Violations of the right to the protection of personal data and the freedom of communication safeguarded by Articles 20 and 22 of the Constitution respectively |
- Alleged violation of the said right and freedom due to the termination of the applicant’s employment contract on the basis of his correspondences through the e-mail address of the workplace. - The applicant, a lawyer in a law office, was dismissed from office at the end of the administrative investigation during which his e-mail communications were monitored. - The relevant court dismissed the applicant’s action for reinstatement, which was subsequently upheld by the Court of Cassation. - In the present case, the applicant had not been explicitly informed of any possible monitoring of the communications through the official e-mail address of the workplace. - Besides, the employer failed to demonstrate any legal basis and any compelling reasons to justify the impugned interference. - Inferior courts failed to observe the relevant constitutional safeguards and conduct the proceedings diligently, thereby to fulfil the relevant positive obligations. |
|
|
N.K. 2017/21761 22 July 2020 (First Section) |
Violation of the right to an effective remedy, safeguarded by Article 40 of the Constitution, in conjunction with the prohibition of ill-treatment, safeguarded by Article 17 thereof |
- Alleged violation of the said right for not being awarded compensation despite being detained in inappropriate conditions pending the execution of the deportation order, which was found unlawful through a court decision. - The applicant was placed in administrative detention pending her deportation for prostitution. However, her deportation order was annulled by the administrative court, and she was then released from the foreigners’ removal centre where she had been placed in administrative detention for 62 days. - She brought an action for compensation for being detained in inappropriate conditions. However, it was dismissed. Upon the appellate process, the regional administrative court awarded partial compensation to her. - Although the applicant clearly complained of her detention conditions, neither the inferior court nor the appellate authority considered these allegations. - They confined their examinations to the applicant’s allegedly unjust detention and failed to conduct an inquiry into the alleged violation of the prohibition of ill-treatment due to the impugned detention conditions. - Therefore, no examination was conducted as to the question whether the applicant’s detention conditions were compatible with human dignity. |
|
|
II. Constitutionality Review |
|||
|
E.2020/44 17 July 2020 (Plenary)
|
Dismissal of the request for annulment of the Law no. 7242 on Amending the Law on the Execution of Sentences and Security Measures and Certain Laws as well as of the Amended Provisional Article 6 of the Law no. 5275 for not being unconstitutional |
- Alleged unconstitutionality in form as the impugned statutory arrangement is in the form of a special blanket pardon, and adoption of laws concerning the grant of pardon requires a three-fifth majority of the Grand National Assembly of Turkey. However, this qualified majority was not sought in the adoption of the contested law. - The contested provisions are mainly related to the remission of the sentences imposed in respect of certain offences. - Whether the contested arrangement is indeed a parole: it has been concluded that it is not a parole as it does not introduce a change in the total length of the sentence and it only includes provisions as to the procedure of the execution of the imposed sentence. - Therefore, the contested law was adopted by maintaining the required quorum for meeting and decision specified in the relevant provision of the Constitution. |
|
|
E.2019/40 17 July 2020 (Plenary) |
Annulment of certain provisions authorizing the executive to determine the general conditions of the compulsory liability insurance |
- Contested provisions do not regulate the scope of the liability of the insurance company arising from the compulsory liability insurance contract; instead they provide that this scope shall be determined by the general conditions, which are the regulatory act of the administration. - According to the contested provisions, the liability of the insurance company to arise from the compulsory liability insurance contract shall be determined by the administration according to the general conditions which may always change. - Thus, the main framework and basic principles regarding the determination of the scope of the debt are not determined by the law, and the administration is granted a broad discretionary power in this regard. - Therefore, the provisions restricting the content of the contract are in breach of Articles 13 and 48 of the Constitution in terms of the criteria of legality. - Besides, the contested provisions should be evaluated considering the balance between the interests of the parties to the contract. - The contested provisions have been found unconstitutional and annulled. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Mehmet Ali Ayhan 2016/7967 22 July 2020 (First Section) |
Violation of the right to legal assistance safeguarded by Article 36 of the Constitution |
- Alleged violation of the said right due to the dismissal of the request for a retrial filed in accordance with the ECHR’s violation judgment. - The applicant, who had not been provided with legal assistance at the investigation stage, was sentenced to aggravated life imprisonment. After the appellate review, the first instance decision became final. - He then lodged an application with the ECHR, which found violations of the right to legal assistance due to his lack of legal assistance at the investigation stage, as well as of the right to a trial within reasonable time. - Relying on the ECHR’s judgment, the applicant filed a request with the incumbent court for a stay of execution of his sentence and for a retrial. - Indeed, a retrial was conducted by the first instance court, which ultimately upheld the initial decision. - It cannot be fully ascertained whether the applicant’s statements, obtained at the investigation stage in the absence of his defence counsel and forming the subject matter of the ECHR’s violation judgment, was relied on as a ground in his conviction ordered at the end of the re-trial. - Failure to comply with the ECHR’s violation judgment. |
|
|
B.A.Ş. 2017/28013 22 July 2020 (First Section)
|
Violation of the right of access to a court safeguarded by Article 36 of the Constitution |
- Alleged violation of the said right due to the dismissal of the action for reimbursement of stamp fee as time-barred. - The applicant, a company engaging in import business in the automotive sector, filed a request with the relevant administration for the reimbursement of the surplus amount of the stamp fee it had paid erroneously for the imported vehicles. - His request was left unanswered, and he then brought an action before the administrative court. - The action was dismissed as time-barred, and the applicant’s appeal request was also dismissed. - As indicated by the inferior court, any surplus amount of stamp fee paid based on an incorrect declaration could be reimbursed by filing a request with the administration. However, this request be filed within 60 days, the period for bringing an action, running from the date of accrual (payment). - The inferior court’s interpretation as to the limitation period for bringing an action precluded the applicant from bringing an action and thereby placed an excessive burden on it; and that the burden borne by the applicant was not proportionate to the legitimate aims pursued. |
|
|
Mehmet Şimşek 2018/10953 22 July 2020 (First Section) |
Inadmissibility of the alleged violation of the right to personal liberty and security as out of time. |
- Alleged violation of the applicant’s right due to his allegedly unlawful and arbitrary detention. - The applicant, detained on remand during the investigation initiated following the coup attempt of 15 July, was sentenced to imprisonment for his membership of the terrorist organisation, FETÖ/PDY. - The regional court of appeal, examining his appellate request, ordered a rehearing of his case as well as his continued detention. The challenge against the continued detention was dismissed. Thereafter, he filed an individual application. - A rehearing ordered by the regional court of appeal does not automatically lead to the annulment of the conviction decision, which would continue to remain in full force until the end of the rehearing. - On the other hand, the allegations indicated in the application form concern the unlawfulness of his detention on remand. - Therefore, the application was declared inadmissible as lodged out of time. |
|
|
Onmed Tıbbi Ürünler Paz. ve Dış Tic. Ltd. Şti 2016/8342 17 June 2020 (Second Section) |
Violation of the nullum crimen, nulla poena sine lege principle safeguarded by Article 38 of the Constitution |
- Alleged violation the said principle, requiring the offences and corresponding penalties to be clearly defined by law, due to the decision issued without considering the new statutory arrangement, which was more favourable to the applicant. - The applicant, a company engaging in purchase and sale of medical consumable materials, was imposed an administrative fine for having contravened the Law on the Protection of Competition. His action for the revocation of this fine was dismissed. His appellate request was also dismissed. - Pending the proceedings, the criterion applied in the determination of the amount of administrative fines was changed by virtue of an amendment to the relevant law. - Despite the applicant’s claim that the new provision was in its favour and must therefore be applied to its case, the Council of State failed to make any assessment in that regard. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Tamer Mahmutoğlu 2017/38953 23 July 2020 (Plenary) |
Violation of the right to respect for private life safeguarded by Article 20 of the Constitution |
- Alleged violation of the said right due to the annulment of the applicant’s registration with the bar association for being dismissed from public office. - The applicant, a bachelor of laws, was dismissed from his public office due to his involvement, relation or link with the FETÖ/PDY. - He then filed a request with a Bar Association to enter on its registry; however, the Bar Association refused the request. Thereafter, he challenged the refusal before the Union of Turkish Bar Associations (“the TBB”). It accordingly annulled the Bar Association’s decision refusing the applicant’s request. - After the TBB’s decision had been finalised, the Ministry of Justice brought an action for annulment before the incumbent administrative court, which annulled the TBB’s decision as those who had been dismissed from public office by virtue of the decree-laws issued under the state of emergency could not be allowed to register with the bar association as, and to use the title of, a lawyer. - In the meantime, the applicant was acquitted at the end of the criminal proceedings. - Whether the impugned interference had a legal basis: the relevant statutory arrangements set forth that those who have been dismissed from their public offices would no longer hold a public office and can no longer use their titles. The applicant did not get the title of lawyer by virtue of his public office. Besides, the profession of lawyer is, in principle, a self-employed profession which is not subject to an administrative hierarchy, and the self-employed lawyers do not practise for and on behalf of the State. |
|
|
M.B. 2018/37392 23 July 2020 (Plenary)
|
Violation of the right to fair proceedings within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution |
- Alleged violation of the said right due to the unforeseeable interpretation of the relevant provisions in the action brought for the annulment of the applicant’s registration with the bar association. - The applicant, holding office as a public prosecutor, was dismissed from his public office following the coup attempt of 15 July. Following his dismissal from public office, the applicant filed a request with a Bar Association to enter on its registry. The Bar Association accepted the request and subsequently, the TBB approved the bar association’s decision. - After the TBB’s decision had been finalised, the Ministry of Justice brought an action for annulment before the incumbent administrative court, which ordered the stay of execution and also annulled the TBB’s decision. The appeals against the court’s decision were rejected. - A decision of non-prosecution was issued at the end of the criminal investigation conducted against the applicant. - The basic question to be resolved in this case is whether the applicant met the necessary conditions sought for practising as a lawyer. In the court’s annulment decision, the applicant was found not to have satisfied the necessary conditions. - Despite being defined as a public service in the relevant law, the profession of self-employed lawyer is not undoubtedly a public service as the lawyers registered with a bar association, save for those practising this profession in public institutions and organisations, do not have any direct or indirect affiliation with the State. - Any interpretation and practice which extends the scope of a given law restricting a right or freedom may give rise to the imposition of a restriction, which has not indeed introduced by the legislator, by administrative and judicial authorities. - The broad and unforeseeable interpretation of the relevant provision of law rendered dysfunctional the procedural safeguards afforded to the applicant. |
|
|
Şeyhmus Terece 2017/26532 23 July 2020 (Plenary) |
Violation of the right to property safeguarded by Article 35 of the Constitution |
- Alleged violation of the said right due to the prolonged application of an interim injunction imposed on the applicant’s immovable. - In an action brought in 1998 for the annulment and re-registration of the title-deeds of the immovable in question, the civil court imposed an interim injunction on the immovable so as to prevent their transfer to third parties. - In the course of the first-instance and appeal proceedings, the interim injunction was not lifted until 2017: therefore, a restriction was imposed on the applicant’s right to property for 19 years, which cannot be considered reasonable. - Nor is there any fault attributable to the applicant in this respect. |
|
|
R.G. 2017/31619 23 July 2020 (Plenary) |
Violation of the right to protect and improve the corporeal and spiritual existence safeguarded by Article 17 of the Constitution |
- Alleged violation of the said right due to the procrastination of the applicant’s request for termination of her pregnancy resulting from a criminal act. - The applicant, who was under 18 at the time of the impugned events, became pregnant as a result of the sexual intercourses she had had by force and threat. - Her family filed a request with the magistrate judge for the termination of the pregnancy. However, it dismissed the request on procedural grounds. Their other attempts to that end were also unsuccessful. - The approach adopted by the judicial authorities deprived the applicant of the opportunity to end her pregnancy and thereby placed an excessive burden on her. - The impugned interference with the applicant’s right to protect and improve her corporeal and spiritual existence was not disproportionate. |
|
|
Murat Haliç 2017/24356 8 July 2020 (First Section)
|
Violation of the right to an effective remedy safeguarded by Article 40 of the Constitution |
- Alleged violation of the said right due to the dismissal of the action for compensation brought by the applicant as the records obtained as a result of the interception of his communication had not been destroyed but rather made public. - During an investigation conducted against the applicant, his telephone conversations were wiretapped and intercepted. At the end of the investigation, a decision of non-prosecution was issued and the destruction of the records of his intercepted communication was ordered. - The applicant brought an action for compensation due to the relevant authorities’ failure to destroy the given records. However, it was dismissed for not satisfying the necessary conditions specified in the relevant Code in the absence of any relevant and sufficient grounds. - Therefore, he was not afforded an effective legal remedy attended by minimum safeguards for the redress of the damage he had sustained within the meaning of the right to respect for private life and the freedom of communication. |
|
| II. Constitutionality Review | |||
|
E.2019/2 11 June 2020 (Plenary) |
Dismissal of the request for annulment of the provisions in Article 86 of the Turkish Criminal Code no. 5237 as well as in Article 20 of the Law no. 6284 on the Protection of Family and Prevention of Violence against Women |
A. Code no. 5237 - The contested provision sets forth that where an intentional injury is committed against a spouse or sibling, no criminal complaint shall be sought for prosecution, and the penalty to be imposed shall be increased by one half. - It is maintained that this provision eliminates the possibility of forgiveness or conciliation, and deepens the conflicts, among family members. - The provision intended for the effective protection of family, which is not contrary to the principles of justice and fairness, is not in breach of the principle of a state governed by the rule of law. It has an objective and reasonable basis. - Therefore, it is not contrary to Articles 2, 10 and 41 of the Constitution. B. Law no. 6284 - The contested provision sets forth that the Ministry of Family, Labour and Social Services (“the Ministry”) may, if deems necessary, intervene in all criminal cases filed due to violence, or a risk of violence, against a spouse. - It is maintained that this provision leads to problems in practice; that the Ministry may pursue the relevant cases by itself; and that the counsel’s fee may be awarded in favour of the intervening parties. - The provision aims at effective protection of the victim of domestic violence and thereby of the family. Therefore, it pursues a legitimate aim in the public interest. - Besides, the Ministry is not envisaged to intervene in all cases but only those deemed necessary by the Ministry itself. An award of counsel’s fee in the favour of the intervening party also depends on the conviction decision to be issued at the end of the proceedings. The amount of this fee, specified in the contested provision, cannot be considered to impose an excessive burden on individuals. - Therefore, it is not contrary to Articles 13, 35, 36 and 41 of the Constitution. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Hasan Ballı 2017/21825 2 June 2020 (Second Section) |
Violation of the right to examine a witness under the right to a fair trial safeguarded by Article 36 of the Constitution |
- Alleged violation of the said right due to the applicant’s inability to examine, at the hearing, the witness whose statements constituted a main basis for his conviction. - The applicant, a co-accused, was sentenced to imprisonment for plundering and depriving the complainant of his liberty. He appealed his conviction which was ultimately upheld. - During the proceedings, S.K. a co-accused of the applicant -who was heard by the incumbent court through the Audio-Visual Information System (“SEGBİS”)- gave testimony against the applicant. - The applicant was then afforded the opportunity to raise his challenges and defence submissions against S.K.’s testimony both in writing and orally, which may be considered as a reparatory opportunity. - However, in his subsequent statements before the first instance court, the complainant H.B. noted that the applicant had not been present at the incident scene and among those who had committed the imputed offences. - Given the subsequent statement of the complainant, it has been concluded that the reparatory opportunity afforded to the applicant was not indeed capable of remedying the impugned restriction imposed on his right of defence. - Therefore, the incumbent court’s reliance on the testimony of the witness, who had not been examined at the hearing, in convicting the applicant had undermined the overall fairness of the proceedings. |
|
|
Y.K. 2016/14347 2 June 2020 (Second Section)
|
Violations of both substantive and procedural aspects of the prohibition of torture safeguarded by Article 17 of the Constitution |
- Alleged violation of the prohibition of torture for the applicant’s having been placed in a single room at the Foreigners’ Removal Centre for a prolonged period of time. - The Foreigners’ Removal Centres are institutions adopting a human-oriented approach in ensuring the shelter and control of the foreigners to be deported. In that vein, the Centres are required to provide services based on the protection of the right to life of the individuals held there as well as the strengthening of them both socially and psychologically. - The impugned interference, pursuing no legitimate aim and contravening the working principles of the Centres, may be regarded as torture given its nature and duration. - As for the procedural aspect of the prohibition of torture, the judicial authorities failed to rely on a comprehensive, objective and impartial assessment of all findings obtained during the investigation process. - Nor was there a rigorous investigation capable of clarifying the applicant’s allegations that his hands and feet had been handcuffed in an isolation room. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Emin Arda Büyük 2017/28079 Berrin Baran Eker 2018/23568 2 July 2020 (Plenary) |
Violation of the right to a court within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution |
- Alleged violation of the applicants’ right due to dismissal, without an examination on the merits, of their actions for reinstatement they had brought challenging the termination of their employment contracts. - The right to a court, one of the guarantees of the right to a fair trial that is an indispensable right in a democratic society, requires that the substantial claims and defences related to the dispute at issue be examined, assessed and adjudicated by the incumbent judicial authority. - In cases where the court, while settling a dispute before it, concludes the trial by relying on the claims and defence put forth by one of the parties but without discussing the substantial objections raised by the other party, then there has not been an actual trial, even if there is a formal decision. - In the present cases, the incumbent courts failed to examine whether the conditions for valid termination had been fulfilled. In other words, the courts failed to fulfil their duty of addressing and adjudicating the material and legal matters of dispute, which constitutes the basis of their judicial function, and thus failed to perform an actual judicial activity. - Therefore, the judicial remedy available to the applicants enabling them to challenge the termination of their employment contracts was accessible for them only in theory. |
|
|
C.A. (3) 2018/10286 2 July 2020 (Plenary)
|
No violation of the right to respect for private life safeguarded by Article 20 of the Constitution |
- Alleged violation of the right of the applicant, a cleaning worker in the municipality, due to termination of her/his employment contract for breach of the trust relationship on account of being a member of an association having relations with the FETÖ/PDY. - The applicant was imposed imprisonment sentence for membership of the FETÖ/PDY, and her/his appeal request is still pending. - The applicant’s statements taken within the scope of the disciplinary investigation conducted against her/him created a serious, strong and objective suspicion of her/his having relation with the FETÖ/PDY. - The administrative and judicial decisions stated that any relationship with the FETÖ/PDY was an indication of the weakness of loyalty to the State and essentially should be regarded as an element breaching the trust relationship. - In addition, the relevant decisions of the courts contained relevant and sufficient grounds that the impugned interference had been proportionate and pursued a pressing social need. - Thus, a fair balance was struck between the public interest and the applicant’s personal interest. |
|
|
Millî Reasürans Türk Anonim Şirketi 2016/70 1 July 2020 (First Section) |
No violation of the right to property safeguarded by Article 35 of the Constitution |
- Alleged violation of the right of the applicant company due to dismissal of its case challenging the tax accrual, despite its declaration of regret as well as submitting a petition for reservation. - In order for an interference with the right to property to be constitutional, the said interference must be legal, proportionate and serve the public interest. In the present case, there is no doubt that the alleged tax collection served the public interest. - The decision of the incumbent court, interpreting a legal provision in the particular circumstance of the case, did not impose an excessive or extraordinary burden on the applicant, and thus the said interference did not disturb the fair balance between the public interest and the applicant’s right to property. |
|
| II. Constitutionality Review | |||
|
E.2020/16 25 June 2020 (Plenary) |
Annulment of the provision hindering the application of simplified trial procedure to cases proceeded to trial by 1 January 2020 |
- Contested provision sets forth that the simplified trial procedure, which has a bearing on the length of sentence to the advantage of the offender in cases which are at the trial stage but have not been concluded yet by a decision, shall be applied being limited to the cases proceeded to trial after a given date. - It is maintained that the contested provision is unconstitutional as the legal arrangements concerning the simplified trial procedure, which embody a more favourable provision, must be applied to all cases. - As a requisite of the legal certainty and legal security, Article 38 of the Constitution precludes the retrospective application of criminal law to the detriment of the offenders. - In cases where a law enacted subsequent to the date of offence decriminalise the same act or prescribes a more lenient sentence for the same offence, the principle of application of a more favourable criminal law comes into play. - Certain rules on trial procedures may have a bearing on the length of sentences prescribed for the criminal acts under prosecution. The prevention of retrospective application of the provisions having a bearing on the length of the relevant sentence to the advantage of the offender falls foul of the principle of nullum crimen, nulla poena sine lege. - Therefore, the contested provision has been found unconstitutional and therefore annulled. |
|
|
E.2019/105 12 June 2020 (Plenary) |
Dismissal of the request for annulment of certain provisions of the Presidential Decree no. 46 |
A. Provision on the Establishment of the Organisation Abroad of the Ministry of Health and Empowerment of the Ministry to Establish this Organisation Contested Provisions - The first provision, where it is set forth the Ministry of Health (“the Ministry”) shall be composed of central, provincial organisations as well as an organisation abroad, is contested insofar as it relates to the phrase “…as well as … abroad”. - The second contested provision is concerning the empowerment of the Ministry to establish the organisation abroad through the Presidential Decree no. 1 upon being amended by the Presidential Decree no. 46. - It is maintained that Article 106 § 11 of the Constitution allows for the establishment of merely the central and provincial organisations of the ministries through the presidential decrees. Besides, Article 123 § 3 of the Constitution prescribing that the public legal entities be established through presidential decrees cannot apply to the ministries. - It is within the President’s discretionary power to decide whether there is a need to establish an organisation abroad of a given ministry pursuant to Article 106 § 1 of the Constitution. Therefore, the first contested provision is not contrary to this constitutional provision. - As regard the second contested provision, the executive organ may leave the necessary actions to be taken pursuant to the decree-laws to the relevant administration after setting the general framework. This provision does not empower the Ministry to make direct arrangements concerning the organisation abroad, but to perform the necessary acts and actions within the scope of such arrangement. - Therefore, the contested provisions have been found constitutional and the request for their annulment has been dismissed. B. Provision Allowing the Health Institutes of Turkey (TÜSEB) to Award Scholarship - The contested provision concerns the phrase “… and scholarship…” added to the Presidential Decree no. 4. In the provision, it is set forth that it is among the TÜSEB’s tasks to provide opportunities, to grant awards and to give scholarship so as to ensure training and improvement of the scientists and researchers. - It is maintained that the contested provision is related to the budgetary right, and that the public expenditures are to be made on the basis of the public budget. However, this expenditure which is not specified in the budget act has been regulated through presidential decree without any legal basis. - TÜSEB is a public legal entity established by virtue of a Presidential Decree. Pursuant to Article 123 § 3 of the Constitution, the duties and powers of this Institute established through presidential decree may also be regulated through a presidential decree. - The issues required to be regulated by law according to Article 161 of the Constitution are limited, inter alia, to the processes and procedures as to the preparation, implementation and auditing of the central administration budget. - In this sense, the contested provision is related to budget for embodying an arrangement as to the making of a public expenditure but does not directly touch on the legislator’s budgetary right. - Besides, laws and presidential decrees must pursue the aim of securing public interest, embody general, objective and fair provisions and observe the fairness criteria. - The contested provision has been found to be in pursuance of public interest given the favourable effects on the public health of raising and training scientists and researchers in the health sector. - Therefore, the contested provision has been found constitutional and the request for its annulment has been dismissed. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Feride Kaya 2016/13985 9 June 2020 (First Section) |
Violation of both substantive and procedural aspects of the prohibition of torture safeguarded by Article 17 of the Constitution |
- Alleged violation of the applicant’s right for her having been subjected to ill-treatment in police custody and the authorities’ failure to conduct an effective investigation in this regard. - The medical reports issued during the investigation process supported the applicant’s claims, which demonstrated that there were sufficient evidence to the effect that the applicant had been subjected to ill-treatment both psychologically and psychically under the supervision and responsibility of the State. - Considering that the investigation was closed as being time-barred, without identification of the perpetrators, the public authorities failed to fulfil their obligation to make a plausible explanation regarding the alleged ill-treatment. - In addition, given the gravity of the offence of ill-treatment, an investigation into such an act should be concluded speedily. However, in the present case, the investigation lasted about 13 years and was subsequently ended as being time-barred. - Thus, the State also failed to fulfil its positive obligation. |
|
|
Savaş Candemir and Others 2016/5116 18 June 2020 (First Section)
|
Violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution |
- Alleged violation of the applicants’ right due to the imposition of administrative fines as they wanted to participate in a press statement during a demonstration. - The applicants were charged with disobedience of an order, as they had failed to comply with the warning to disperse during a demonstration. - In order for such an administrative sanction, there should be an order previously announced and applicable on the date of the alleged act, as well as the applicants’ conducts should be incompatible with the said order. - Vagueness as to the existence of such an order that was actually applicable at the material time. - Failure of the judge to provide a convincing justification as regards the applicants' acts requiring the imposition of an administrative fine. - The applicants were imposed administrative fines on the sole basis of the public authorities’ interpretation; therefore, the said interference was unlawful. |
|
|
Rabia Nur Yazıcı and Selma Kocapiçak 2016/9528 9 June 2020 (First Section) |
Violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution |
- Alleged violation of the said right due to the failure to conduct an effective investigation into the deaths resulting from a flood. - The applicants are the relatives of a father and his two children who lost their lives due to the flooding of the basement floor where they lived. - During the criminal investigation into the incident, permission was sought for launching an investigation against the public officers who were allegedly responsible for the impugned incident. No permission was granted for some of these public officers. In respect of those who were subject to an investigation, a decision of non-prosecution was issued. - The applicants then filed an action for compensation whereby the administrative court found the relevant administrations faulty and awarded compensation to the applicants. However, this decision was quashed by the Council of State which also dismissed the subsequent request for rectification of the decision. The case remitted to the administrative court is still pending. - Whether the criminal investigation into the present case was conducted effectively: despite a court expert report where one of the relevant administrations was found 50% at fault, the investigation authority issued a decision of non-prosecution in respect of these public officers. - Failure to conduct an effective investigation that would prevent impunity gave rise to a violation of the positive obligation to set up an effective judicial system. |
|
|
Güven Bostan 2016/4293 1 July 2020 (First Section) |
Violation of the right to property safeguarded by Article 35 of the Constitution |
- Alleged violation of the said right due to the attachment of the applicant’s domicile against the tax debt, which was devoid of legal basis. - The applicant filed an action for revocation of the payment orders issued for the unpaid tax debts of the company where he is a shareholder. The orders which had not been duly issued were revoked, while the others were approved. He paid the relevant amounts indicated in the payment orders which were not revoked. - However, the tax authority levied attachment on the applicant’s immovable as the amounts not revoked were not fully paid and had to be collected from the company. The applicant filed an action for annulment of the attachment process, and it was annulled by the administrative court. - However, the first instance decision was quashed upon the administration’s appellate request. The applicant’s request for rectification of the decision was also dismissed. - During his request for rectification of the decision, the applicant raised his claim that no attachment could be levied on his immovable for being a domicile. However, the regional administrative court dismissed the request, without making a reasoned assessment as to this claim. - The procedural safeguards were not fulfilled; fair balance to be struck between the public interest underlying the impugned interference and the individual interest in the protection of the applicant’s right to property was upset to his detriment; and the impugned interference was not proportionate. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Muhsin Hükümdar 2016/69274 5 March 2020 (Plenary) |
Violation of the right to a fair trial safeguarded by Article 36 of the Constitution |
- Alleged violation of the applicant’s right due to the police officer’s practice inducing him to commit a misdemeanour. - In the present case, a police officer entered the applicant’s shop in the guise of a customer and purchased alcoholic drinks at night during the hours when selling alcoholic drinks were legally forbidden. Thereupon, the police officer showed his identity and issued a report against the applicant. Hence, the applicant was imposed an administrative fine. - In the Constitutional Court’s view, in cases where there is no suspicion of an individual’s having committed a crime before, creating an environment inducing the relevant person to commit a crime is unacceptable. - Even in cases where there is a suspicion of crime, special investigation techniques to be applied must also have a legal basis. - It is clear that the police officer took an active role in the misdemeanour alleged to have been committed by the applicant. - The applicant was deprived of his right to a fair trial. |
|
|
Yıldırım Turan 2017/10536 4 June 2020 (Plenary)
|
Inadmissibility of the alleged violation of the right to personal liberty and security for being manifestly ill-founded. |
- Alleged violation of the said right due to the applicant’s detention in the absence of any concrete evidence and against the procedural safeguards afforded to members of the judiciary. - The applicant was suspended, in the aftermath of the coup attempt of 15 July, from his office for having relation with the FETÖ/PDY and subsequently detained on remand for his membership of the said terrorist organisation. He was then released pending trial. - It should be primarily noted that investigation/prosecution of, and applying preventive measures including detention in respect of, judges/prosecutors who are covered by the security of tenure granted for the judiciary are subject to permission/decision of an administrative body if the imputed offence is related to his profession (except for cases of flagrante delicto). However, if it is an individual offence, there is no statutory arrangement impeding such investigation/prosecution (and such measures) or making the relevant process subject to permission of any administrative authority. - In its previous judgments in similar cases, the Court considered the membership of a terrorist organisation as an individual offence and as a case of flagrante delicto. - Therefore, the act imputed to the applicant is an individual offence: therefore, no statutory obstacle rendering his detention unlawful. - On the other hand, the ECHR, in one of its judgment which is not final yet, concluded that the applicant’s detention was unlawful as being contrary to the safeguards afforded to the members of the judiciary and found a violation under the Convention. - The Court, notably in dealing with the individual applications before it, considers and adopts, to a significant extent, the ECHR’s case-law and the Convention. It also pays attention to render decisions in compliance with the ECHR’s case-law, as a requirement of its role to minimise the possible conflicts between the domestic law and international law. - However, it should be indicated that it is for the Turkish authorities exercising public power and thereby for the domestic courts to interpret statutory provisions concerning detention of the members of the judiciary. The domestic courts are in a better position to interpret the domestic statutory provisions than the ECHR. - Regard being had to the other factors in the prevent case, the Court found that the applicant’s detention also had both legal and factual basis. |
|
|
Serkan Şeker 2017/15118 2 June 2020 (Second Section) |
Violation of the right to a fair trial before an impartial tribunal safeguarded by Article 36 of the Constitution |
- Alleged violation of the said right due to sitting of a judge dismissing the applicant’s complaint against a disciplinary sanction also on the bench of the court examining his challenge to the first instance decision. - The applicant, who was detained, was placed in solitary confinement for 3 days, as a disciplinary sanction for defaming and insulting the public officers during a quarrel between the prisoners and the guardians. - In principle, the procedural safeguards inherent in the right to a fair trial must be afforded also during the appellate process. In this sense, for ensuring effectiveness of the appellate examination and giving no impression that such examination has not been conducted in accordance with the objective impartiality principles, the judge issuing the first instance decision in a given case must not sit on the bench of the appellate tribunal. - However, failing to fulfil this principle is not per se sufficient to conclude that the appellate examination is ineffective and partial. Particular circumstances of each case must also be taken into consideration. - In the present case, despite the clear statutory provision setting forth that in cases where a magistrate judge sits also on the bench of the assize court, which will examine the challenge against the decision issued by a bench composed of the same magistrate judge, he cannot take part in the appellate proceedings, the judge involved in the appellate examination of the applicant’s challenge, which impaired the objective impartiality. |
|
|
II. Constitutionality Review |
|||
|
E.2018/155 11 June 2020 (Plenary) |
Annulment of the provision of Presidential Decree that prescribed an amendment to the Law |
- Contested provision stipulates that certain departments, which were established with Presidential Decrees, shall be added to Schedule (1) annexed to Law no. 5018, and thus, the principles governing the budgeting and supervision processes of these departments shall be evaluated within the scope of the general budget. - It is argued that the impugned amendment by the relevant Presidential Decree is related to an issue that is in fact regulated by law. - Article 104 of the Constitution provides that the issues except for those related to executive power shall not be regulated by a presidential decree. - The contested provision has been found unconstitutional on the ground of incompetence ratione materiae, and therefore it has been annulled. |
|
|
E.2018/88 11 June 2020 (Plenary) |
Dismissal of the request for annulment of the provisions stipulating that that higher education institutions may require additional conditions in the appointment of associate professors and assistant professors |
- Contested provisions stipulate that higher education institutions may require additional objective and reviewable conditions in the appointment of associate professors and assistant professors. - It is argued that the contested provisions are unclear may result in discriminatory practices. - According to Article 130 of the Constitution universities have scientific autonomy. - Considering the dynamic structure of scientific and academic studies as well as the needs and conditions of each higher education institution, it may be necessary to determine new conditions, which cannot be foreseen before, in the appointment of academic staff. - The impugned provisions also set forth certain criteria in terms of the use of such authority (e.g. the said conditions must be objective and reviewable). Besides, additional conditions determined by higher education institutions shall be subject to the approval of the Council of Higher Education. - The contested provision has been found constitutional. Thus, the request for its annulment has been dismissed. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Bedrettin Morina 2017/40089 5 March 2020 (Plenary) |
Violation of the prohibition of discrimination taken in conjunction with the right to property safeguarded by Article 35 of the Constitution |
- Alleged violation of the prohibition of discrimination, taken in conjunction with the right to property, due to the applicant’s deprival of the opportunity to fill pension contribution gaps incurred for the period of service abroad prior to acquirement of Turkish citizenship. - The applicant, subsequently acquiring Turkish citizenship, was entitled to old age pension from the Social Insurance Institution (“the SSI”) in 2009 by filling the pension contribution gaps incurred for the periods he worked abroad. However, his pension was cut, and he was ordered to return the paid amounts in 2015 by the SSI’s decision which indicated that he was not entitled to old age pension as the period of his service abroad could not be taken into consideration. - Upon the appeal process, his case became final. - Indifference treatment between natural-born citizens and naturalised citizens as those in the former category are afforded the opportunity to file pension contribution gaps while those in the latter category are not for the periods of service abroad prior to citizenship. - In the present case, there was no objective and reasonable ground justifying such a difference in treatment by the type of acquirement of citizenship: placing an excessive burden on the applicant. |
|
|
Bünyamin Uçar 2017/32004 3 June 2020 (First Section)
|
Violation of the principles of equality of arms and adversarial trial safeguarded by Article 36 of the Constitution |
- Alleged violation of the relevant principles due to the failure of the authorities to inform the applicant of the confidential information and documents used as evidence during the proceedings within the scope of the action for annulment brought by the applicant. - The applicant had brought the impugned action for annulment, challenging his elimination due to the unfavourable result of the security investigation conducted in respect of him as part of the procedures for recruitment, although he had successfully passed the personnel recruitment examination. - It is of great importance for the applicant to be aware of the content of the security investigation in order to be able to defend himself and make claims. - Otherwise, he will be in a weak and disadvantaged position in the face of the administration's actions. - It is clear that the applicant had been subjected to a procedure falling foul of the principles of equality of arms and adversarial trial. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Şehrivan Çoban 2017/22672 6 February 2020 (Plenary) |
Violation of the right to be present at the hearing within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution |
- Alleged violation of the applicant’s right due to the dismissal of her request to be present at the hearing and instead, her being provided with the opportunity to attend the hearing though the audio-visual information system. - The parties' right to be present at the hearing not only ensures the effective exercise of the right to defence, but also renders the principles of equality of arms and adversarial proceedings operational. - The authorities failed to consider alternative methods other than the audio-visual information system that should be among the last resorts. The particular circumstances hindering the applicant’s being present at the hearing were not indicated. - As a result, the authorities failed to demonstrate in concrete terms that the dismissal of the applicant’s request to be present at the hearing, where an examination on the merits had been made, had really been necessary. As such, the impugned interference had not been necessary. |
|
|
M.T. 2018/10424 4 June 2020 (Plenary)
|
Inadmissibility of the alleged violation of the right to personal liberty and security as being manifestly ill-founded |
- Alleged violation of the applicant’s right due to his unlawful detention on remand. - The applicant was detained on remand for membership of the FETÖ/PDY within the scope of the investigation launched after the coup attempt of 15 July, and a criminal case was filed against him. At the end of the proceedings, he was convicted of membership of an armed terrorist organization. - The charges against the applicant were mainly based on the fact that he had been using the application called ByLock, which was the most important ground for his detention on remand. - It is specified in numerous court decisions that the ByLock –the covert digital communication platform of the FETÖ/PDY– was the most important application used by the organization in order not to be uncovered by ensuring the communication among its members privately. - A number of investigations conducted into the ByLock application have demonstrated that it was not an ordinary communication programme but was used as a private and secret communication platform among the members of the FETÖ/PDY. - Considering the results as a whole, it has been understood that the assessments made by the judicial authorities to the effect that the ByLock communication system, under the cover of a global application, had in fact been created to ensure organizational communication among the members of the FETÖ/PDY and the organizational communication was provided with great confidentiality through this program were based on very strong factual grounds as well as material/technical data. - Therefore, regarding the use of the ByLock application as an organizational activity cannot be considered as an ill-founded or arbitrary approach. Hence, it was considered as a strong indication of guilt in terms of crimes related to the FETÖ/PDY. |
|
|
Ferhat Kara 2018/15231 4 June 2020 (Plenary)
|
- No violation of the right to a fair hearing under the right to a fair trial safeguarded by Article 36 of the Constitution - Inadmissibility |
- Alleged violation of the applicant’s right as the digital data from ByLock had been obtained unlawfully and formed a basis for his conviction as a sole and decisive evidence. - The applicant, a guardian at the relevant time, was sentenced by the incumbent assize court to 7 years and 6 months’ imprisonment for his membership of an armed terrorist organization, namely the FETÖ/PDY, after the coup attempt of 15 July. In his conviction, the court relied on the applicant’s use of ByLock application. - Whether the relevant digital data were obtained unlawfully: The National Intelligence Organization (“the MİT”) became aware of the use of ByLock application for organizational purposes while performing its duties under Law no. 2937. The MİT then reported this fact (digital materials) to the judicial authorities for necessary action. Therefore, the act by MİT –where it only reported a concrete data it had obtained on a legal basis while performing its intelligence activities in order to reveal the organizational acts and actions during the period when the FETÖ/PDY was perceived by the public authorities to pose a threat to the national security- cannot be construed to the effect that the MİT, an intelligence service, performed law-enforcement activities. The acts by the intelligence services to obtain and analyse information and evidence concerning terrorist organizations meet a pressing need in democratic societies. - Therefore, the delivery, to the chief public prosecutor’s office, of the digital materials on ByLock communication system, which was obtained by the MİT within the framework of its statutory powers, and the technical report issued in this respect cannot be considered to constitute a manifest error of judgment or manifest arbitrariness. - Besides, the judicial authorities conducted all necessary examinations and inquiries as to the authenticity and reliability of the digital data. The defence was provided with the opportunity to challenge the authenticity of the evidence indicating that the applicant was a ByLock user. - The court’s reliance on the applicant’s use of ByLock encrypted communication network, which was used by the FETÖ/PDY members to ensure confidentiality, in the applicant’s conviction cannot be considered as a manifest arbitrary act which completely rendered dysfunctional the procedural safeguards inherent in the right to a fair trial: inadmissibility for being manifestly ill-founded. |
|
|
Eren Erdem 2019/9120 9 June 2020 (First Section)
|
Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution |
- Alleged violation of the impugned right of the applicant, a journalist, an author and the Republican People’s Party (CHP) 25th and 26th term MP for İstanbul, due to unlawfulness of his detention and the lack of reasoning for the risk of his fleeing. - He was detained on the basis of strong suspicion that he had knowingly and wilfully aided the FETÖ/PDY armed terrorist organization. He was then sentenced to 4 years and 2 months’ imprisonment. He was subsequently released by the decision of the regional court of appeal. - During the investigation launched against him in 2014, the investigation authorities did not find it necessary to order his detention or to apply any other measure. - However, relying on the fact that the applicant was not nominated to stand as a 27th term MP as well as on a report sent to the police through an e-mail that he might flee abroad, the incumbent chief public prosecutor’s office requested issuance of an arrest warrant against him. Thereafter, a ban was imposed on his travelling abroad. - The applicant, not being aware of the ban, unsuccessfully tried to travel to Germany with his family. - The Court has observed that the report sent to the police by an unknown person cannot be regarded as a strong suspicion. Besides, there was no other concrete fact underlying the risk of his fleeing: therefore, his detention was found disproportionate. |
|
|
Selahattin Demirtaş (3) 2017/38610 9 June 2020 (First Section)
|
Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution |
- Alleged violation of the said right of the applicant, an MP and also the co-chairperson of the Peoples’ Democratic Party (“the HDP”) at the time when his detention was ordered, due to the unreasonable length of his detention. - He was detained on remand for his alleged membership of a terrorist organization and having publicly incited to commit an offence. - The Constitutional Court, examining the applicant’s individual application, found his detention lawful. - He then lodged an application with the ECHR which also found his detention lawful but concluded that the length of his detention exceeded reasonable time, which amounted to violations of the right to personal liberty and security, the right to free elections as well as of the prohibition that the rights and freedoms cannot be restricted for any purpose other than those prescribed under the Convention. His case is still pending before the Grand Chamber. - Despite the assize court’s decision ordering his release, the applicant was not released who was convicted of another offence at the time of the decision. - His detention was ordered anew within the scope of another investigation. - Whether the length of his pre-trial detention has exceeded a reasonable time: The Court has observed on the basis of certain findings that there were strong indications of the applicant’s guilt. - However, the incumbent courts failed to make an assessment as to the applicant’s allegations that his continued detention was unreasonable due to his capacities as an MP, co-chairperson of a political party and a presidential candidate. - Dismissal of his requests for release and challenges against his continued detention based on stereotyped reasoning: therefore, his continued detention lacked relevant and sufficient reasoning. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Senih Özay 2020/13969 9 June 2020 (First Section) |
Inadmissibility for non-exhaustion of available remedies |
- Alleged violations of certain constitutional rights and freedoms due to the Covid-19 lockdown measure ordered for those aged 65+. - The applicant, who was among those covered by the circular issued by the Ministry of Inferior where a lockdown restriction was imposed for those aged 65+ and those suffering from chronic illnesses, directly lodged an individual application with the Court without resorting to any other judicial remedy. - Whether there was any effective remedy capable of addressing the said allegation and finding a violation, if any. - The applicant should have filed an administrative action for annulment, which is a remedy capable of establishing whether there was an interference with the applicant’s constitutional rights and, if any, whether it constituted a violation. - Besides, despite certain measures taken in judiciary, as a part of the fight against Covid-19, for slowing down, to a certain extent, the judicial services and ensuring their performance through different working methods, the judicial activities were never suspended. - Accordingly, the consideration that the examination and adjudication of an administrative action, if filed, may be postponed due to the Covid-19 measures had no legal basis. - The present application lodged without exhausting the available administrative remedy was therefore declared inadmissible. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Rıdvan Türan 2017/20669 10 March 2020 (First Section) |
Violation of the freedom of communication safeguarded by Article 22 of the Constitution |
- Alleged violation of the impugned freedom of the applicant, a prisoner, due to the penitentiary institution’s refusal to send his letter, for its allegedly inconvenient content. - The relevant public authorities and inferior courts are obliged to justify with relevant and sufficient grounds that the impugned interference with fundamental rights and freedoms pursued a pressing social need and was proportionate. Otherwise, such interferences would not comply with the requirements of the democratic social order. - The authorities’ failure to provide reasonable grounds for such interference. -The impugned interference had not been necessary in a democratic society. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Kemal Çakır and Others 2016/13846 5 Mart 2020 (Plenary) |
Violation of the right of access to a court within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution |
- Alleged violation of the applicants’ right due to dismissal, without an examination on the merits, of the action they had brought seeking the annulment of the decision whereby it was concluded that an environmental impact assessment was not required for the project according to which a wind power plant would be built in an area close to the neighbourhood where their properties were located, for their alleged lack of capacity to sue. - The impugned decisions of the interior courts included a categorical approach that those who did not have a property in the project area would not be able to challenge against the impugned project under any circumstances, regardless of their subjective conditions such as the closeness of their properties to the project area as well as their intended use. - Since such an approach made it impossible for the people, who were likely to be affected by the project, to bring an action, the said interference with the applicants' right of access to a court was disproportionate. |
Press Release |
|
Doğan Depişgen 2016/12233 11 March 2020 (Second Section)
|
Violation of the right to property safeguarded by Article 35 of the Constitution |
- Alleged violation of the applicant’s right due to the denial of the payment of his salary as a mukhtar for the period when he was held in detention. - The applicant was acquitted at the end of the proceedings. - The subsequent actions he brought claiming pecuniary and non-pecuniary damages were concluded in his favour, but his request for the payment of his unpaid salaries was rejected. - The authorities failed to provide reasonable grounds in this respect. - An excessive burden was imposed on the applicant. - The fair balance between the protection of the right to property and the public interest pursued by the interference was disturbed to the detriment of the applicant. Hence, the impugned interference had been disproportionate. |
|
| II. Constitutionality Review | |||
|
E.2018/125 E. 2019/31 E. 2019/78 22-23 January 2020 (Plenary) |
- Dismissal of the request for annulment of the contested provisions included in the Presidential Decrees no. 1 and 8 for not being unconstitutional - Annulment of the provision allowing for an advance payment in product and service procurements abroad |
- The most significant feature of the presidential government system is, inter alia, to authorize the President to make arrangements through the “presidential decrees”. - The President is authorized, by virtue of the Constitution, to issue presidential decrees; however, it is not an unlimited authority. - Article 148 of the Constitution sets forth that the presidential decrees be subject to constitutionality review both in substance and in form. - In Article 104 § 17 of the Constitution, it is set forth that the President may issue presidential decrees on the matters regarding executive power; and that the fundamental rights, individual rights and duties, and the political rights and duties shall not be regulated through a presidential decree. It is further specified that no presidential decree shall be issued on the matters which are stipulated, in the Constitution, to be regulated exclusively by law and which have been explicitly regulated by law. A. Provision stipulating that the Supreme Military Council (“the SMC”) secretariat services shall be conducted by the authority to be designated by the President. - It is argued that empowering the President to assign the authority that would conduct the SMC secretariat services, without setting the basic principles on the performance of these services, is in breach of the Constitution. - The contested provision does not allow for the establishment of an administrative structure or regulation of its duties and powers but vests the President with the power to designate the authority that would perform and conduct the SMC secretariat services. Nor is the provision concerning a matter needed to be regulated exclusively by law. Accordingly, it has been found constitutional insofar as it relates to the competence ratione materiae. - The presidential decrees are also required to be clear, precise, comprehensible, enforceable and objective to the extent that would cause no hesitation and doubt for both individuals and the administration. - As the contested provision, allowing for the performance of these services by an authority to be designated by the President, involves no unclarity, it has been found constitutional by its content. B. Provision allowing for an advance payment in product and service procurements abroad. - It is maintained that the contested provision is unconstitutional as it is intended for making an arrangement as to the matter which has been indeed regulated explicitly by law; and that the executive power has been exercised in breach of the principle of supremacy of the Constitution and the laws. - In the review of the contested provision, it was firstly ascertained whether the relevant law was enforceable in the field covered by the presidential decree and subsequently determined whether the statutory arrangement was clear. - The terms and conditions of making an extra budgetary advance payment are in general laid down in Article 35 of Law no. 5018, which sets out the terms and conditions of extra budgetary advance payments. - . It has been therefore concluded that the contested provision on the matter which has been explicitly regulated by law introduces an arrangement in breach of the relevant provision of the Constitution. Accordingly, it has been found unconstitutional insofar as they relate to the competence ratione materiae. C. Provisions providing for the appointment of coordinator head doctor for the joint management of hospitals - It is maintained that the provisions allowing for the appointment of a coordinator head doctor, in cases where there are several hospitals located within the same campus, for the joint management of these hospitals contain arrangements concerning a matter which is specified in Article 128 of the Constitution and which is to be regulated exclusively, and has been already regulated, by law. - Article 106 § 11 of the Constitution provides for “The establishment, abolition, the duties and powers, the organizational structure of the ministries, and the establishment of their central and provincial organizations shall be regulated by the presidential decree”, thereby explicitly permitting to make arrangements, through the presidential decree, concerning the organizational structure of the ministries and the establishment of their central and provincial organizations. Accordingly, the contested provisions have been found constitutional insofar as they to the competence ratione materiae. - Given the objective meaning of, and the aim pursued by, the contested provisions, it has been observed that they are designed to ensure the proper fulfilment of the duties and responsibilities concerning the management of the hospitals and thereby the effective performance of health-care services. Therefore, the contested provisions involve no aspect that would require the Court to conclude that they are intended for any purpose other than public interest. Accordingly, they have been found constitutional by their contents. D. Provisions Stipulating that the members of the High Advisory Board of the Presidency and payments likely to be made to the members shall be designated by the President - It is argued that the contested provisions are unconstitutional on the grounds, inter alia, that there is no clarity as to the qualifications, number and expertise of the Board members; and that the financial rights of the Board members should have been designated by law. - Duty performed by the Board members is not in the form of a principal and permanent public service which is to be conducted in accordance with the general administrative principles within the meaning of Article 128 of the Constitution. Therefore, the designation of the Board members and the relevant payments cannot be considered as a matter needed to be regulated exclusively by law. - Accordingly, the contested provisions have been found constitutional insofar as they relate to the competence ratione meteriae. - The qualifications of the Board members are set forth in Article 4/A of the Presidential Decree. - In consideration of the advisory nature of the Board, the number of the Board members having the necessary qualifications may vary by time and situation. It has been considered that the non-designation of the number of the Board members would not lead the individuals to foresee the relevant consequences of the contested provisions and render the provisions unclear, incomprehensible and unenforceable for the administration. - It has been concluded that the contested provisions, taken together with the other provisions on the purpose of the Board’s establishment, qualifications of the members and their assignment procedure, do not lead to any unclarity. - Accordingly, the contested provisions have been found constitutional by their contents. |
Press Release |
|
E.2018/139 19 February 2019 (Plenary) |
Annulment of the provision stipulating that in cases filed in order to benefit from premium incentive, the legal interest shall start running from the date of application to the administration prior to filing a case.
|
- Contested provision stipulates that in cases filed in order to benefit from premium incentive, the legal interest shall start running from the date of application to the administration prior to filing a case, and that the payments shall be made within three years. - It is argued that the payment of the applicants’ receivables within three years will neither be lawful nor fair, as well as in view of the date of entry into force of the impugned provision, it will result in inequality between those who had brought or will bring an action in the same respect. - It is clear that considering the date on which the legal interest shall start running and the three-year period prescribed for the payment, the contested provision restricts the right to property. It imposes a disproportionate burden on those concerned. - The provision is found unconstitutional for being in breach of Articles 13, 35 and 36 of the Constitution and it is therefore annulled. |
|
|
E.2018/122 19 February 2019 (Plenary) |
Annulment of the Decree Law provision that is not based on the Empowering Act and Prescribes a Regulation on Fundamental Rights |
- Contested provision stipulates that those who will be employed in public service on a contractual basis shall be required not to have been given imprisonment sentence for a period of more than 6 months. - It is argued that while the impugned period is one year with regard to the public officials employed under the Civil Servants Law, it is six months with regard to the personnel to be employed in public service on a contractual basis under the relevant Decree Law, which is allegedly in breach of the principle of equality and therefore unconstitutional. - Question of applicability of the repealed Article 91 of the Constitution, which regulated the legal regime of the decree laws: It is found applicable under certain circumstances. - The contested provision stands for a regulation regarding the exercise of the right to enter public services. However, according to the repealed Article 91, the said issue cannot be regulated by a decree law. - The provision is found unconstitutional for being in breach of the repealed Article 91 of the Constitution and it is therefore annulled. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Constitutionality Review | |||
|
E.2018/163 19 February 2020 (Plenary) |
Annulment of the provision stipulating that the units entrusted with conducting security investigation and archive research are authorized to access personal data |
- Contested provision stipulates that the units entrusted with conducting security investigation and archive research are authorized to receive information and documents from the archives and electronic data processing centres of the ministries and public institutions as well as to access the records and court decisions. - It is argued that the contested provision grants an unlimited opportunity to access the personal data of those wishing to enter public service, which may take away the concerned persons’ chance to enter public service or the dismissal of those who already hold public service positions. In this regard, it is claimed that the impugned provision imposes an unlimited restriction on the right to enter public service, in breach of the Constitution. - Article 20 of the Constitution provides that everyone has the right to request the protection of his/her personal data. - The data obtained through conducting security investigation and archive research are personal data. Thus, the contested provision restricts the right to request the protection of personal data. - According to Article 20 of the Constitution, personal data can be processed only in cases envisaged by law or by the person’s explicit consent. The principles and procedures regarding the protection of personal data shall be laid down in law. - The law where the contested provision is embodied provides no guarantee or regulation concerning the obtainment or processing of such data. - Consequently, the provision is found unconstitutional as being in breach of Articles 13 and 20 of the Constitution and it is therefore annulled. |
|
|
E.2018/91 19 February 2020 (Plenary)
|
Annulment of certain provisions of the Law no. 7072 on the Adoption, with Certain Amendments, of the Decree-Law on Making Certain Arrangements under the State of Emergency |
A. Provision stipulating that the licence applications of media service providers which are reported by the General Directorate of Security and the National Intelligence Agency to have connections and relations with terrorist organizations shall be rejected. - It is argued that the restriction imposed by the contested provision is disproportionate and that the procedures and principles regarding the said interference are not set forth in the law. - Article 13 of the Constitution stipulates that any restriction on the freedoms of expression and the press shall be in conformity with the reasons mentioned in the relevant articles of the Constitution and be proportionate. - It is observed that the relevant Law provides no legal guarantees preventing any arbitrariness in this respect; therefore, the contested provision imposes a disproportionate restriction on the freedom of expression and the press. - The determination of the fact that the contested provision is unconstitutional in the ordinary period does not include any assessment as to whether it is constitutional under the state of emergency. - Consequently, the Constitutional Court has found the contested provision in breach of Articles 13, 26 and 28 of the Constitution and therefore annulled it. B. Provision stipulating that as regards the crimes committed in the virtual platform, the police shall be authorized to access the identity information of internet subscribers and to carry out researches in the virtual environment, as well as the access, location and content providers shall provide such requested information to the relevant law enforcement unit. - It is argued that the relevant powers granted to the police officers by contested provision should in fact be enjoyed only by the public prosecutor according to the criminal procedure system. - Article 20 of the Constitution safeguards the right to request the protection of personal data within the scope of the privacy of the private life. The identity information of internet subscribers constitutes personal data. - The contested provision restricts the right to request the protection of personal data. - Any restriction on the fundamental rights and freedoms must comply with the order of the democratic society as well as it must serve a pressing social need. The practice prescribed by the contested provision does not meet these criteria. - The determination of the fact that the contested provision is unconstitutional in the ordinary period does not include any assessment as to whether it is constitutional under the state of emergency. - Consequently, the Constitutional Court has found the contested provision in breach of Articles 13 and 20 of the Constitution and therefore annulled it. C. Provision stipulating that security investigation and archive research shall be conducted in respect of the personnel to be hired on contractual basis. - It is argued that it will result in arbitrariness where personal data is accessed through security investigation and archive research in the absence of legal regulations related to its obtainment, processing and use. - The data obtained through conducting security investigation and archive research are personal data. Thus, the contested provision restricts the right to request the protection of personal data. - According to Article 20 of the Constitution, personal data can be processed only in cases envisaged by law or by the person’s explicit consent. The principles and procedures regarding the protection of personal data shall be laid down in law. - The law where the contested provision is embodied provides no guarantee or regulation concerning the obtainment or processing of such data. - The determination of the fact that the contested provision is unconstitutional in the ordinary period does not include any assessment as to whether it is constitutional under the state of emergency. - Consequently, the Constitutional Court has found the contested provision in breach of Articles 13 and 20 of the Constitution and therefore annulled it. |
|
|
Case |
Decision |
Case-Law Development |
Related |
| I. Individual Application | |||
|
Emine Göksel 2016/10454 12 December 2019 (Plenary) |
Violation of the right to respect for family life safeguarded by Article 20 of the Constitution |
- Alleged violation of the impugned right of the applicant for dismissal of her challenge against the attachment order on their family residence that was imposed due to her husband’s debts. - In cases where the attached house is a family residence, the concept “residential house” should be interpreted as a house suitable for the social and economic situation of the debtor and his family, not only the debtor. - The positive obligations regarding the family residence, which are imposed on the State by the Constitution, are independent of the right to property. - Considering that the debtor's spouse also has a legal interest in resorting to the jurisdiction to challenge the attachment of their family residence, she/he should have the opportunity to raise her/his rights arising from the assurance of the family residence as well as to assert them before the judicial authorities. - The incumbent court’s narrow interpretation of the capacity for bringing an action did not comply with the guarantees enshrined in the Constitution. |
Press Release |
|
Erenkum İnş. Taah. Nak. Gıda Tur. San. ve Tic. Ltd. Şti. 2017/6462 27 February 2020 (First Section)
|
Inadmissibility (right of access to a court) |
- Alleged violation of the impugned right of the applicant, a company, due to the dismissal of its challenge against the traffic ticket as being time-barred. - Examination of the application from the standpoint of the criterion of being devoid of constitutional and personal significance, which is one of the admissibility criteria. - It is concluded that the application does not point to a general problem regarding the right of access to a court, nor is it important for the implementation and interpretation of the Constitution. - Besides, the applicant failed to demonstrate how the dismissal of its challenge against the administrative fine caused harm to it. |
Press Release |
|
Mustafa Berberoğlu 2015/3324 26 February 2020 (Second Section) |
Violation of the right of access to a court safeguarded by Article 36 of the Constitution |
- Alleged violation of the said right due to dismissal of the action brought by a trade union on behalf of the applicant for lack of litigation capacity. - The applicant, a trade-union representative at his workplace, was given disciplinary punishments by the institution where he was holding office and subsequently appointed to another office. - As the applicant did not give an explicit authorisation to the trade union, the case brought by the latter was dismissed by the Council of State which also dismissed the request for rectification of the dismissal decision. - In cases where an administrative action is dismissed for lack of litigation capacity, it is almost impossible to bring a fresh action, thereby constituting a particularly severe interference with the right of access to a court. - Despite the existence of a less severe means of interference to achieve the pursued aim, resorting to a more severe means was also in breach of the principle of necessity. |
Press Release |
|
Yasin Akdeniz 2016/22178 26 February 2020 (Second Section) |
No violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution |
- Alleged violation of the said right as the applicant, who was detained for attempting to overthrow the constitutional order and his membership of the FETÖ/PDY terrorist organisation, could not effectively challenge his detention due to the restrictions on his meetings with his lawyer. - The right to personal liberty and security is not among the core rights which cannot be interfered with, by virtue of Article 15 of the Constitution, in case of a state of emergency during which measures contrary to the safeguards prescribed for the ordinary period may be taken. - The said restrictions have been found to be strictly required by the exigencies of the state of emergency. -Besides, these restrictions are not applicable to all detainees and intended for maintaining constitutional order and public safety. - Accordingly, the applicant’s membership of the FETÖ/PDY justified the monitoring of his meetings with his lawyer. |
|
|
Case |
Decision |
Case-Law Development |
Related |
|
I. Individual Application |
|||
|
Deniz Karadeniz and Others 2014/18001 6 February 2020 (Plenary) |
Violations of the prohibition of treatment incompatible with human dignity and the freedom of expression, respectively safeguarded by Articles 17 and 26 of the Constitution
|
- Alleged violations of the applicants’ rights for their having been battered and insulted by the police officers and for removal of the banner hung on the political party building. - Use of tear gas in an indoor area constituted a disproportionate use of force. - In addition, no effective criminal investigation was conducted against the police officers. - Any interference with the freedom of expression that is of vital importance for the functioning of democracy must comply with the requirements of the order of the democratic society, and the public authorities must put forth relevant and sufficient reasons to justify the interference. - The Constitutional Court has acknowledged in its many judgments that the freedom of expression should be interpreted broadly that it may allow for exaggeration and even provocation to some extent. - The content of the banner hung by the applicants did not pose a threat to the public order. - The impugned interference did not meet a pressing social need. Nor was it proportionate or necessary in a democratic society. |
|
|
İhsanYalçın 2017/8171 9 January 2020 (First Section) |
Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution |
- Alleged violation of the applicant’s right due to his unlawful detention. - The applicant was charged with the membership of the FETÖ/PDY terrorist organization. - However, the authorities failed to provide strong indication of guilt substantiating the applicant’s detention. - The applicant’s detention was unlawful also under Article 15 of the Constitution regulating the suspension of the exercise of fundamental rights and freedoms in cases of state of emergency, as the detention was not a kind of measure that was strictly required by the exigencies of the situation. |
|
|
Ali Taştan 2017/5809 29 January 2020 (First Section) |
Violation of the freedom of expression safeguarded by Article 26 of the Constitution |
- Alleged violation of the impugned freedom of the applicant, an educationalist and unionist, due to his punishment for his expressions during an interview. - The Ministry of National Education filed a criminal complaint against the applicant. - The trial court made an abstract assessment regardless of the context of the applicant’s expressions and relied on only one word; it failed to consider the said interview as a whole. - Failure on the part of the judicial authorities to strike a fair balance between the applicant’s freedom of expression and the complainant’s right to honour and dignity. - It should be acceptable in a democratic society that the applicant, who closely follows educational debates that are especially of interest to the union of which he is a member, can freely express his criticisms on the issue. - Besides, as a requirement of the democratic society, the public authorities should be more tolerant to the criticisms about their actions. - In addition, the complainant authority used its wide range of opportunities to respond to the criticisms directed to it and could inform the public. - The trial court failed to provide relevant and sufficient grounds to demonstrate that the punishment imposed on the applicant corresponded to a pressing social need. |
|
|
Hüseyin Aydın and Others 2016/4177 27 February 2020 (First Section) |
Violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution |
- Alleged violation of the applicants’ right due to the judicial authorities’ making a decision without taking into consideration the neglect of duty in a case where the applicants’ relative had also died as a result of the explosion of an armoury. - Judicial authorities’ failure to examine and make an assessment as to whether there had been a neglect of duty on the part of the military administration. - It is concluded that within the scope of the positive obligation to protect the right to life, the judicial process did not operate effectively. |
|
|
İbrahim Kaya 2017/29474 28 January 2020 (Second Section)
|
Violation of the right to be provided with the necessary time and facilities to make defence under the right to a fair trial safeguarded by Article 36 of the Constitution |
- Alleged violation of the applicant’s right due to submission of the case file to the regional court of appeal without communication of the reasoned decision to the applicant. - The applicant was convicted of fraud. The decision was read to him at the hearing. He appealed against the decision, stating that he would later submit his reasons for appeal after the impugned decision would be communicated to him. However, without the communication of the decision to the applicant, the regional court of appeal dismissed his appeal on the merits. - The applicant could not prepare a document pertaining to the detailed reasons for his appeal and thus could not submit any document to the regional court of appeal in this regard. Hence, he could not properly exercise his right to appeal. |
|
|
Fenerbahçe Spor Kulübü Derneği 2017/4483 13 February 2020 (Second Section) |
Violation of the right to property safeguarded by Article 35 of the Constitution |
- Alleged violation of the impugned right of the applicant, a sports club, due to the administration’s getting a share of its revenue from the advertisement on its uniforms. - Any interference with the right to property must have a clear, accessible and foreseeable legal basis. - However, there was no legal provision ordering the applicant’s payment of the impugned amount. Therefore, imposition of a financial obligation in the absence of legal arrangement was in breach of the principle of legality |
|
|
Melih Dalbudak 2016/16050 13 February 2020 (Second Section)
|
Violations of both substantive and procedural aspects of the right to life safeguarded by Article 17 of the Constitution |
- Alleged violation of the applicant’s right for his having sustained life-threatening injuries as a result of the use of disproportionate force by the police officers and for the authorities’ failure to conduct an effective criminal investigation into the incident. - The applicant was injured with a gas cartridge fired by the police officers. The use of such a weapon must be the last resort. However, in the present case, the impugned use of force was not absolutely necessary. - The investigation into the incident did not allow for an assessment as to whether the legislation regulating the use of force by the police officers provided safeguards against the arbitrary and excessive use of weapons as well as preventing individuals from unexpected accidents. - In this respect, the police officers failed to take the necessary measures and resorted to the use of force in an uncontrolled manner. - Besides, the investigation process lacked due diligence and reasonable promptness. |
|
|
Mehmet Okyar 2017/38342 13 February 2020 (Second Section)
|
Violation of the right to a reasoned decision within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution |
- Alleged violation of the applicant’s right for the trial court’s disregarding the Court of Accounts’ decision that was in his favour. - The trial court failed to provide reasons for its decision that was contrary to that of the Court of Accounts. - The principle of state of law is a basic principle required to be observed in the interpretation of the fundamental rights and freedoms enshrined in the Constitution. It also necessitates that the judicial authorities, as much as possible, refrain from making contradictory decisions regarding the same material or legal facts. Otherwise, the principle of state of law, as well as the people’s confidence in the law may be undermined. |
|
|
II. Constitutionality Review |
|||
|
E.2018/159 24 December 2019 (Plenary) |
Annulment of the provision stipulating that the executives who have been reinstated in their public services shall be appointed according to their titles prior to being an executive |
- Contested provision stipulates that in cases where the people, who were dismissed from public service pursuant to Decree Law no. 677 while holding executive positions, have been reinstated, their titles prior to their executive positions shall be taken into consideration in their appointment. - It is argued that the contested provision eliminates the public officials’ right to be reinstated in their positions prior to their dismissal in the absence of objective and concrete reasons, which is in breach of the principle of the protection of vested rights and the principle of legal certainty, and thus in breach of the Constitution. - It is a requirement of the principle of legal certainty to ensure that the public officials shall not be dismissed, unless there is a legal and factual necessity. - As a result of the applications with the Commission on Examination of the State of Emergency Procedures, in the event that the Commission renders a decision in favour of the individual concerned, then it means that he has no relation or connection with the terrorist organizations. However, in the presence of such a decision, failure to reinstate the public officials in their last positions will create the impression that the suspicions against them have not disappeared, which may adversely affect the individuals’ private and professional lives. - Besides, the contested provision does not provide any guarantee to prevent such an impression, as well as it prescribes no a legal and factual necessity for preventing their appointment to their last positions. - Accordingly, the impugned provision does not comply with the requirements of the order of the democratic society, and it also violates the principle of proportionality. - The provision is found unconstitutional for being in breach of Articles 13 and 20 of the Constitution and it is therefore annulled. |
|
|
Case |
Decision |
Case-Law Development |
Related |
|
I. Individual Application |
|||
|
UğurluGazetecilik Basın YayınMatbaacılıkReklamcılık Ltd. Şti. (3) 2016/5653 9 January 2020 (First Section) |
Violations of the freedoms of expression and the press safeguarded respectively by Articles 26 and 28 of the Constitution
|
- Alleged violations of the impugned freedoms of the applicant, a publishing company as well as a newspaper, due to a decision of the Press Advertisement Associationordering the suspension of the publication ofadvertisements and official announcements. - It is of vital importance in terms of the freedom of the press that such a decision hindering the economic opportunities of a newspaper should be the last resort. - Failure of the Press Advertisement Association as well as the civil court to make a comprehensive assessment. - Punishment of the applicant in such a way did not serve a pressing social need. |
|
|
İhsanYalçın 2017/8171 9 January 2020 (First Section) |
Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution |
- Alleged violation of the applicant’s right due to his unlawful detention. - The applicant was charged with the membership of the FETÖ/PDY terrorist organization. - However, the authorities failed to provide strong indication of guilt substantiating the applicant’s detention. - The applicant’s detention was unlawful also under Article 15 of the Constitution regulating the suspension of the exercise of fundamental rights and freedoms in cases of state of emergency, as the detention was not a kind of measure that was strictly required by the exigencies of the situation. |
|
|
FarmasolTıbbiÜrünler San. ve Tic. A.Ş. (2) 2017/37300 15 January 2020 (First Section) |
Violation of the right to property safeguarded by Article 35 of the Constitution |
- Alleged violation of the right due to non-reimbursement of the fee paid by the applicant company to file an objection despite the decision in its favour. - The applicant was excluded from a tender by the tender commission. The relevant administration dismissed his complaint against its exclusion. - The applicant then filed an objection with the relevant Authority by paying the relevant fee. Examining its objection, the Authority decided in favour of the applicant. - However, the applicant was not reimbursed the fee it had paid. - Receiving of the relevant fee indeed pursued the aim of public interest, but the impugned interference with the right to property placed an excessive burden on the applicant. - Besides, the applicant’s interests were disregarded. |
Press Release |
|
FidanlarİnşaatTaahhütSanayiveTicaret Ltd. Şti. 2017/38836 15 January 2020 (First Section)
|
No violation of the right to property safeguarded by Article 35 of the Constitution |
- Alleged violation of the applicant’s right for imposition of an administrative fine of an excessive amount due to its failure to obtain an EIA report prior to starting a construction. - Obtaining an EIA report prior to any construction activity is of great importance in terms of the protection of environment and the right to live in a healthy environment. - The applicant, as a company operating in the construction industry and having carried out many projects, should have predicted that it would not be allowed to start a construction without obtaining an EIA report. - Administrative fine resulting from the applicant’s own negligence. - In addition, the applicant’s failure to submit any information or document substantiating its allegation that the amount of the fine was excessive. - Fair balance was struck between the applicant’s right to property and the public interest, as well as the impugned interference was proportionate. |
Press Release |
|
Abdulkadir Yılmaz and Others 2016/13649 29 January 2020 (First Section)
|
Violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution |
- Alleged violation of the applicants’ right as no permission was granted for initiating an investigation against certain public officers, the suspects of the mine explosion resulting in death and injury of several persons. - The relevant expert report reveals that the public officers, who inspected the mine where the explosion took place from 2010 to the explosion date, had certain omissions which might have a bearing on the occurrence of the explosion. - However, the Minister of Labour refused to grant permission to initiate an investigation against these officers. - Discontinuation of the judicial process without allowing the investigation authorities to establish the criminal liability of the public officers was incompatible with the principles of an effective investigation. - Besides, the failure to charge the persons who have put individuals’ lives at risk or to subject them to a trial may give rise to a violation of the right to life. |
|
|
II. Constitutionality Review |
|||
|
E.2018/74 24 December 2019 (Plenary) |
Annulment of the provision hindering the right to file a case against the additional measures implemented with the state of emergency decree laws |
- Contested provision stipulates that the additional measures set forth in the Decree-Laws adopted during the state of emergency cannot be challenged before the Inquiry Commission for State of Emergency Measures. - Primary measures stipulated in the relevant decree-laws can be challenged. However, the additional measures are not always the essential consequences of or related to the primary measures. Some of them directly concern the fundamental rights and freedoms safeguarded by the Constitution. - The contested provision prevents any assessment on the lawfulness of the said additional measures. Thus, such measures should be considered independently. - The provision is found unconstitutional for being in breach of the right to an effective remedy under Article 40 of the Constitution. |
|
|
Case |
Decision |
Case-Law Development |
Related |
|
I. Individual Application |
|||
|
Ahmet Gülen 2016/23168 16 January 2020 (Second Section) |
Violation of the right to respect for family life safeguarded by Article 20 of the Constitution
|
- Alleged violation of the said right of a detainee whose request for having a contact visit with his child with Down syndrome was rejected. - The public authorities should have taken into consideration the fact that the child who was 90 percent disabled and suffering from Down syndrome could not properly enjoyed his right to non-contact visit and that it would be to his best interest to be allowed to visit his imprisoned father under more special conditions. - The authorities’ failure to put forth relevant and sufficient grounds for dismissal of the applicant’s request. - The impugned interference had not been proportionate or necessary in a democratic society in terms of ensuring minimum family relationships. |
Press Release |
|
Aslan Avcı Döküm Sanayi ve Ticaret A.Ş. 2017/39159 28 January 2020 (Second Section) |
No violation of the right to property safeguarded by Article 35 of the Constitution
|
- Alleged violation of the said right due to the administrative fine imposed on the applicant for its failure to dispose of hazardous wastes. - Disposal of hazardous wastes is of great importance for the protection of environment and for the right to enjoy a healthy environment. - The impugned interference with the applicant’s right to property was intended to serve the public interest and to protect the environment. - No factual obstacle to the disposal of the hazardous wastes. - The applicant had the opportunity to effectively challenge the impugned interference which was through its own fault. - No judicial or administrative sanction, other than the administrative fine, was imposed. - The fair balance that had to be struck between the applicant’s right and the public interest was not upset, and the interference was proportionate. |
|
|
Case |
Decision |
Case-Law Development |
Related |
|
I. Individual Application |
|||
|
Uğurlu Gazetecilik Basın Yayın Matbaacılık Reklamcılık Limited Şirketi (2016/12313) 26 December 2019 (Plenary) |
No violations of the freedoms of expression and the press respectively safeguarded by Articles 26 and 28 of the Constitution
|
- Alleged violations of the said freedoms of the applicant for the damages it had been ordered to pay due to the news allegedly referred to an issue that had already been reported as news previously and allegedly falling into the scope of journalistic activities. - The allegations raised against the complainants, who are a politician and his wife, in the impugned news had not relied on credible evidence. - The applicant’s failure to fulfil its obligation to make an extensive research before disseminating information. - Punishment imposed on the applicant was proportionate and complied with the requirements of the order of the democratic society. |
|
|
Erol Aksoy 2016/11026 12 December 2019 (Plenary) |
Violation of the right to property safeguarded by Article 35 of the Constitution
|
- Alleged violation of the said right due to the non-execution of the court decisions ordering annulment of the sale by auction of the applicant’s media group. - An administrative act annulled by an administrative tribunal is deemed to have never been performed. The administration is not relived of its obligation to execute an annulment decision even under extraordinary circumstances where its execution is impossible either de jure or de facto. - In the present case, the court decisions annulling the impugned tender and sale were not executed in spite of having final and operative effect. - Public authorities’ failure to ensure the execution of these decisions. - Administration’s failure to demonstrate the existence of any de jure and de facto impossibility hindering the execution of the decisions as well as to offer an alternative solution to the applicant. |
|
|
Ayfer Demirel and Others 2016/8011 9 January 2020 (First Section) |
Violation of the substantive aspect of the right to life safeguarded by Article 17 of the Constitution |
- Alleged violation of the said right of the applicants’ next-of-kin who had died as a result of the explosion of military ammunition at the age of 13 due to the failure of military authorities to take adequate measures. - As the place where the incident had occurred and the ammunition had been obtained was a military zone or close to there, the public authorities had an obligation to take reasonable and special security measures to ensure the protection of life. - However, the security measures taken had not been sufficient to the extent ensuring the protection of a minor at the age of 13. - It should be noted that children, who naturally do not have ability to discern like adults, should be provided with special protection. |
|
|
Şehmus Altındağ and Others 2014/4926 9 January 2020 (First Section)
|
Violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution |
- Alleged violation of the right of the applicants, demonstrators protesting the killing of some persons who were members of the PKK terrorist organization, on the ground that the police officers caused incidents of death and injury by use of arms unlawfully, as well as that the investigation authorities failed to conduct an effective and speedy investigation into the incident. - In order for a criminal investigation to be effective, the investigation authorities should act ex officio and immediately with a view to collecting all evidence capable of clarifying the incident and identifying those responsible. - Investigation authorities’ failure to act with due diligence. Despite the existence of tangible evidence on how the impugned incidents had occurred, a decision of non-prosecution had been issued, which demonstrated that the relevant evidence had not been subject to exhaustive, objective and impartial analysis
|
|
|
II. Constitutionality Review |
|||
|
E.2018/89 14 November 2019 (Plenary)
|
Dismissal of the request for annulment of the provisions stipulating that those who have connections and relations with terrorist organizations shall not be allowed to be notary, mediator or expert |
- Contested provisions stipulate that those who have connections and relations with terrorist organizations shall not be allowed to be notary, mediator or expert. - It was claimed; that the contested provisions were unconstitutional on the grounds that the contents of the terms connection and relation were unclear and unpredictable; that they were not only applicable during the state of emergency, but were of continuous nature; that they constituted and interference with the right to enter public service; and that such an interference did not comply with the criteria regarding the restriction of fundamental rights and freedoms. - The contested provisions are convenient and necessary for ensuring the legal certainty and public interest, given the nature of the mentioned professions. - As for the alleged lack of clarity and predictability regarding the contents of the terms connection and relation; the Court denies this allegation, as the said terms are of general nature and their contents are clear as well as predictable. - It is also possible that any dispute to arise out of the application of these provisions may be brought before the courts. In addition, there is no obstacle in entering these professions for those who have applied to the courts against the allegations to the effect that have connections and relations with terrorist organizations and hence received a judgment in their favour. - The Law where the impugned provisions are included also provides legal safeguards preventing any arbitrariness in their application. - Consequently, the reasonable balance between the public interest in ensuring the conduct of the public service in an accurate, impartial and safe manner and the individuals’ right to enter public service has been struck. |
|
|
E.2018/90 14 November 2019 (Plenary)
|
Annulment of certain provisions of the Law no. 7071 on the Adoption, with Certain Amendments, of the Decree Law on Making Certain Arrangements under the State of Emergency |
A. Provision stipulating thatthe municipal services, which cannot be carried out properly due to disasters, mass migration and terrorism or due to the appointment of the mayor or deputy mayor to another service, may be transferred to another municipality upon the request of the governor or mayor. In such a case, the relevant request can be fulfilled with the permission of the Minister of the Interior, without the need for a council decision of the municipality the service of which is transferred to another municipality. - It was argued that the provision constituted an interference with the administrative and financial autonomy of municipalities. - Transfer of municipal service to another municipality without consulting to the council of the municipality in need of assistance is in breach of the autonomy of local administrations as well as the principle of local administration. - Provision found unconstitutional and annulled. B. Provision stipulating thatthe real and legal persons reported by the General Directorate of Security and theUndersecretariat of the National Intelligence Agency to have connections and relations with terrorist organizations cannot participate in public tenders. - It was argued; that such a prohibition would constitute an interference with the freedom of contract; that the contents of the terms connection and relation was unclear and unpredictable; and that imposition of such a measure in the absence of a main legal arrangement, but relying on sub-arrangements, would amount to the delegation of the legislative prerogative. - The announcement to be made by the General Directorate of Security and the Undersecretariat of the National Intelligence Agency must not necessarily be predicated upon the information and documents that may form a basis for the criminal investigation. The contested provision does not provide legal safeguards against any potential arbitrariness in this respect. - Provision found in breach of Articles 13 and 48 of the Constitution and annulled. C. Provisionallowingfor postponement of a legal strike or lockout in the sector of mass transportation service and banking services, for a period of 60 days. - It was argued; that the contested provision imposed an excessive and disproportionate restriction on the right to strike; that the executive organ was vested with an authority that could only been enjoyed by the judiciary; and that the right to strike could be restricted in vital or basic public services but the services set forth in the provision are not of that nature. - Any restriction on the right to strike that is important in terms of the functioning of democracy must pursue a pressing social need. - Mass transportation and banking services are not among the vital or basic public services. - The restriction prescribed in the impugned provision does not comply with the requirements of the order of the democratic society. -Provision found in breach of Articles 13 and 54 of the Constitution and annulled. D. Provisions imposing a restriction on the creditor’s right to make a claim from the debtor company; precluding the guarantor from raising certain pleas of claim; and envisaging that in cases where the company for which a trustee has been appointed is a guarantor, the creditor(s) may make a claim from the company only after applying to the debtor and the other guarantors. - It was argued; that the contested provisions allowed for an unforeseeable interference with the right to property as well as for an unequal treatment in favour of the companies for which a trustee has been appointed; and that vesting the TMSF, an administrative body, with the authority to directly sell assets of real and legal persons constituted an arbitrary interference with the right to property. - The contested provisions were intended for attaining the aim of public interest. At this point, it would be ascertained whether the least severe means was chosen to attain this aim. - Unilateral alteration of the deeds, which were indeed guaranteed by the legal provisions in force at the relevant time, to the detriment of one party upset the fair balance between requirements of the protection of the individuals’ right to property and the aim of public interest sought to be attained and imposed an excessive burden on individuals. - Provisions found in breach of Articles 13 and 35 of the Constitution and annulled. |
|
|
E.2018/38 24 December 2019 (Plenary)
|
Dismissal of the request for annulment of the provision stipulating that the Black Sea-Marmara Canal Project (Canal İstanbul) and similar waterway projects shall be included in the investments and services that can be carried out by public institutions and organization within the framework of the build-operate-transfer model |
- Contested provision stipulates that the Black Sea-Marmara Canal Project (Canal İstanbul) and similar waterway projects shall be included in the investments and services that can be carried out by public institutions and organization within the framework of the build-operate-transfer model. - It was argued; that the project would have an adverse impact on the environment, nature and individuals’ lives; that there is no outweighing public interest in materialization of the project; and that it is incompatible with the international obligations on the protection of environment. - The contested provision only indicates the method to enable the performance of the project and does not include any expression and content which would preclude taking of necessary, effective and functional measures in order to protect the environment. - Nor does it remove, in any aspect, the obligation to act in line with constitutional principles and provisions concerning the protection of the environment. - Provision not found in breach of the Constitution, and the request for its annulment was rejected. |
|
|
Case |
Decision |
Case-Law Development |
Related |
|
I. Individual Application |
|||
|
Mustafa Özterzi 2016/14597 31 October 2019 (Plenary) |
Violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution
|
- Alleged violation of the said right due to unlawfulness of the applicant’s arrest, custody and detention under an investigation conducted into the FETÖ/PDY. - Detention of the applicant, a former judge, had a legal basis. - Investigation authorities’ failure to demonstrate the existence of concrete facts as to the strong indication of the applicant’s guilt. - The impugned interference is not justified by Article 15 of the Constitution allowing for suspension and restriction of the exercise of fundamental rights and freedoms in times of a state of emergency. |
|
|
Rasül Kocatürk 2016/8080 26 December 2019 (Plenary) |
Violation of the right to respect for private and family life safeguarded by Article 20 of the Constitution
|
-Alleged violation of the said right due to dismissal of the request by the applicant, a convict held in a penitentiary institution, to attend his father’s funeral and to receive condolence visits. - The prosecutor’s office dismissed the request as the funeral had already taken place and the staff shortage in the institution might cause security vulnerability. - The applicant should have filed a challenge before the execution judge against the prosecutor’s dismissal decision. However, as his father’s funeral had taken place before the decision was served on him, this remedy would not secure an effective outcome for the applicant: no need for him to exhaust this remedy before lodging an individual application. - As provided for in Law no. 5275, the convicts are entitled to a compassionate leave in case of the death of their next-of-kin, which includes not only to attend the funeral but also to receive condolence visits. - The authorities’ failure to prove that they had indeed responded with due care to ensure the applicant’s attendance in the funeral and that they had resorted alternative means to overcome the understaffing problem. |
|
|
Case |
Decision |
Case-Law Development |
Related |
|
I. Individual Application |
|||
|
Wikimedia Foundation Inc. and Others 2017/22355 26 December 2019 |
Violation of the freedom of expression safeguarded by Article 26 of the Constitution
|
-Alleged violation of the said freedom as the blanket ban on access to Wikipedia constituted an interference not complying with the requirements of the democratic order of the society. - Blocking of access to Wikipedia in Turkey has constituted an interference not only with the freedom to disseminate information and thoughts enjoyed by the applicant in its capacity as the content provider but also with the Turkish users’ right to receive information and thoughts. - Inferior courts’ failure to prove the causal link between the impugned contents on the website and the reason underlying the restriction as well as to provide relevant and sufficient grounds to demonstrate that the impugned restriction was justified by a pressing need. -The measure of blocking access has become permanent so as to clearly constitute a disproportionate interference with the said freedom. |
|
|
Betül Öztürk Gülhan and Sıla Koç 2016/12937 10 December 2019 |
Violations of the prohibition of treatment incompatible with human dignity and the right to hold meetings and demonstrations marches safeguarded respectively by Articles 17 and 34 of the Constitution
|
- Alleged violations of the said prohibition and the right due to the decision of non-prosecution issued at the end of the investigation conducted against the police officers who had intervened in the demonstration held in order to protest the Soma mine accident. - Failure to demonstrate the necessity of the police intervention in the demonstrators. - No sufficient diligence and endeavour by the investigation authority to identify the police officers who had sprayed the applicants with tear gas. - The investigation authority’s failure to fully take necessary steps to clarify the incident and to conduct the investigation with due diligence: violation of the prohibition of treatment incompatible with human dignity. - No finding to the effect that the applicants impaired the peaceful nature of the meeting. - The administration’s failure to demonstrate that the applicants’ acts led to the disturbance of the public order or caused such a risk: violation of the right to hold meetings and demonstration marches. |
|
|
Yaşar İnce 2016/1750 10 December 2019
|
Violation of the right to respect for family life safeguarded by Article 20 of the Constitution |
- Alleged violation of the said right due to dismissal of the applicant’s request for maintaining contact with his stepfather while serving his aggravated life imprisonment sentence. - A reasonable balance is to be struck between the public interest in maintaining security and discipline at prisons and the individual interest in ensuring the prisoners to maintain their family relations. - The Court has emphasized several times that even in the absence of blood relation or adoption, a family tie may be deemed to have been established, under certain circumstances, between the children and those taking care of them and meeting their needs. - The impugned interference was not based on relevant and sufficient grounds. Nor was it proportionate and necessary in a democratic society. |
|
|
Murat Yasan 2015/6802 8 January 2020 |
Violations of the principles of equality of arms and adversarial proceedings inherent in the right to a fair trial safeguarded by Article 36 of the Constitution |
- Alleged violations of the said principles as the applicant was not notified of the expert report forming a basis for the impugned decision, which precluded him from duly putting forward his claims and challenges against the report. - In dismissing the action brought by the applicant, the inferior court relied on an expert report which had not been previously served on him. Therefore, the applicant was deprived of practical and effective opportunities to examine, comment on and challenge the report. - Nor were his subsequent challenges against the report discussed in the appeal process. |
|
| II. Constitutionality Review |
|
||
|
E.2019/85 14 November 2019 |
Dismissal of the request for annulment of the contested provision in the Turkish Criminal Code which allows for suspension of the running of prescription until the settlement of the dispute which is to be dealt with and resolved in another jurisdiction |
- Alleged unconstitutionality as the contested provision has led to the prolongation of the proceedings due to faults not attributable to the parties involved, which is in breach of the right to a fair trial as well as contrary to the principle of equality and the prohibition of discrimination. - The law-maker has a discretion in setting the prescription time-limits on condition of being compatible with the constitutional rules. - It should be noted that the prescription time-limits are set not only in favour of individuals but also in favour of the public in general. - Despite the contested the provision, the criminal judge is also entitled to adjudicate the case without awaiting for the decision to be rendered on the same matter in another jurisdiction. - Therefore, the provision was not found in breach of Articles 10, 36 and 41 of the Constitution. |
|
|
Case |
Decision |
Case-Law Development |
Related |
|
I. Individual Application |
|||
|
Candaş Kat |
Violation of the right to an individual application safeguarded by Article 148 of the Constitution
|
- Alleged violation of the applicant’s right due to the seizure by the prison administration of the documents that he wanted to send to his lawyer by e-mail in order to lodge an individual application. - Individual application is a constitutional right ensuring the protection of fundamental rights and freedoms. Therefore, administrative and judicial authorities are obliged to abstain from acting in a deterrent or obstructive manner in this respect. - In the present case, no relevant and sufficient grounds were provided to demonstrate why these documents were found unrelated with individual application. |
|
|
Hayko Bağdat |
Violation of the freedom of expression safeguarded by Article 26 of the Constitution
|
- Alleged violation of the applicant’s right for being convicted due to his social media post addressed to a politician. - The Court has always stressed that the limits of criticism against politicians and publicly known persons are much wider. - The fine imposed on the applicant would have a suppressive effect on his activities as an author and journalist. - The interference with his freedom of expression with a view to protecting another person’s reputation and rights was not found compatible with the requirements of a democratic society. |
|
|
Mehmet Salih Baltacı |
Violation of the right to property safeguarded by Article 35 of the Constitution |
- Alleged violation the said right for seizure of the vehicles belonging to a third person for allegedly having been used during an offence. - The applicant whose vehicles had been used during the offence had not been aware of the said offence; he was a bona fide third party. The judicial authorities’ failure to make a reasonable assessment in this respect. - The applicant was imposed an excessive and disproportionate burden. - Failure to strike a fair balance between the applicant’s right to property and the public interest to the detriment of the applicant. |
|